UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-41268
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ATLAS WAYNE PHILLIPS,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
(1:96-CV-83)
May 27, 1998
Before WISDOM, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Atlas Wayne Phillips, federal prisoner no. 03199-078, appeals
the district court’s denial of his 28 U.S.C. § 2255 motion to
vacate, set aside, or correct sentence. In his motion before the
district court, Phillips argued (1) that the evidence was
insufficient to support his conviction for using or carrying a
firearm during and in relation to a drug offense, in violation of
*
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this opinion should not be published and is not precedent except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.
18 U.S.C. § 924(c)(1), and (2) that the trial judge’s erroneous,
pre-Bailey2 instructions regarding the “use” prong of § 924(c)(1)
rendered his conviction constitutionally infirm. Neither
contention has merit. We affirm.
During a traffic stop, police found over 55 kilograms of
marijuana in a car in which Phillips was traveling. Police also
discovered a loaded pistol in Phillips’s suitcase, which was
located in the back seat of the car. Phillips subsequently
admitted that the gun belonged to him, and that he required it for
his drug business. Even though the government did not produce
enough evidence to convict Phillips under the properly-understood
“use” prong of § 924(c)(1), the government adduced more than enough
evidence to convict Phillips under the “carry” prong of §
924(c)(1).3 With respect to Phillips’s jury instructions argument,
we find that he has failed make the requisite showing of actual
prejudice resulting from the trial court’s error.4 Essentially,
Phillips cannot demonstrate prejudice because the amount of
evidence supporting a conviction under the “carry” prong was
overwhelming. We further note that the jury was adequately
instructed on the “carry” prong, and that the jury verdict
2
Bailey v. United States, 116 S.Ct. 501 (1995).
3
See United States v. Garcia, 1998 WL 67123 at 4 (5th Cir.)
(if an indictment alleges separate offenses in the conjunctive, the
government is required to prove only one of the offenses to obtain
a conviction).
4
See United States v. Frady, 456 U.S. 152, 167-68 (1982).
2
necessarily encompassed all of the elements necessary to convict on
that prong.5
AFFIRMED.
5
See United States v. Holland, 116 F.3d 1353, 1356-59 (10th
Cir. 1997). See also United States v. Watson, 97-30106 (5th Cir.
Jan. 20, 1998) (unpublished).
3