UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60455
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARGARET JO CHRISTMAN,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Mississippi
(CRW91-37-S-D)
January 28, 1998
Before POLITZ, Chief Judge, JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
We granted Margaret Jo Christman a certificate of appealability on the
district court’s denial of her motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct her sentence. Christman was convicted by a jury of conspiracy, possession
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
of marihuana with intent to distribute, and using or carrying a firearm during a
drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1). Her section 2255
motion pertains to the firearm offense. Concluding that the record supports
Christman’s conviction for carrying a firearm, we affirm. Christman’s motion for
appointment of counsel on appeal is denied.
Background
Christman and her husband Michael were arrested in their Chevrolet Blazer
after Michael sold marihuana to an informant. At the time of their arrest, Michael
told the officers that there was a gun in the console between the front seats. The
trial evidence reflects that Christman had the gun in her jacket pocket when she
entered the car and that she placed it in the console. Her convictions and sentences
were affirmed on appeal.1 After the decision of the Supreme Court in Bailey v.
United States,2 Christman moved for post-conviction relief which the district court
denied.
Analysis
Section 924(c)(1) is violated when a defendant “during and in relation to any
1
United States v. Christman, 988 F.2d 1210 (5th Cir. 1993).
2
_____ U.S. _____, 116 S.Ct. 501 (1995).
2
crime of violence or drug trafficking crime . . . uses or carries a firearm.”3
Although we previously required only the presence of a gun for a conviction under
the use prong of the statute,4 the Supreme Court in Bailey defined “use” and held
that the government must produce evidence “sufficient to show an active
employment of the firearm by the defendant, a use that makes the firearm an
operative factor in relation to the predicate offense.” 5
In light of Bailey, Christman contends that the facts of her offense do not
support a conviction under the “use” prong of the statute. It is evident from the
record, however, that the jury was adequately instructed on the elements of
“carrying” a firearm and the evidence is ample to support Christman’s conviction
for that offense. Evidence that a firearm has been transported in a vehicle and was
knowingly possessed during and in relation to a drug offense satisfies the carrying
requirement of section 924(c)(1).6 Christman had a gun in her jacket pocket which
she stored in the console of the vehicle prior to the sale of drugs to the informant.
3
18 U.S.C. § 924(c)(1).
4
United States v. Ivy, 973 F.2d 1184 (5th Cir. 1992).
5
Bailey, _____ U.S. at _____, 116 S.Ct. at 505.
6
See United States v. Pineda-Ortuno, 952 F.2d 98 (5th Cir. 1992); United States v.
Hall, 110 F.3d 1155 (5th Cir. 1997); United States v. Muscarello, 106 F.3d 636 (5th Cir.
1997).
3
Even though the record supports her conviction under the carrying prong of section
924(c)(1), Christman maintains that her sentence must be vacated for a new trial
on the carrying theory only. We do not agree. The jury instructions, read in their
entirety, appropriately instructed the jury as to the carrying prong of the statute.
Christman’s jury was not told that mere possession was sufficient for a conviction.
The teachings of Bailey do not require the new trial Christman demands.
AFFIRMED.
4