F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 16 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 98-4151
(D.C. No. 96-CV-795-K)
ROY SPENCER HARMON, (D. Utah)
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BRORBY , EBEL , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
The United States appeals the district court’s order granting defendant Roy
Spencer Harmon relief on his motion filed under 28 U.S.C. § 2255. The district
court vacated defendant’s conviction under 18 U.S.C. § 924(c)(1) for using or
carrying a firearm during and in relation to the commission of a drug trafficking
crime and granted him a new trial. The district court also ordered that
defendant’s base offense level be reduced from fourteen to twelve and that his
claims of ineffective assistance of counsel and perjured testimony be denied; the
government does not challenge those rulings. Our jurisdiction arises from
28 U.S.C. § 1291. We reverse and remand with directions to reinstate the
conviction under § 924(c)(1). 1
Defendant was arrested as he got out of his automobile. He was wearing a
fanny pack which contained 125 doses of LSD, cash, and a .25 caliber automatic
pistol. As noted above, he was convicted of violating § 924(c)(1). His conviction
was affirmed on appeal. See United States v. Harmon , 996 F.2d 256, 257 (10th
Cir. 1993). In that appeal, defendant alleged that the jury instructions erroneously
defined “in relation to” as used in the charge of using or carrying a firearm during
and in relation to a drug crime. See id. He did not challenge the instructions for
“using or carrying.” Subsequently, the Supreme Court decided Bailey v. United
1
A certificate of appealability is not required from the United States. See
United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998).
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States , 516 U.S. 137 (1995), interpreting the “use” prong of § 924(c), defining it
more narrowly than lower courts had previously defined it, and holding that “the
government must prove active employment of the firearm during and in relation to
the predicate crime.” United States v. Powell , 159 F.3d 500, 501 (10th Cir.
1998), cert. denied , 119 S. Ct. 1088 (1999).
Defendant then filed this § 2255 petition in which he challenged his “use
and/or carry” conviction. The district court adopted the magistrate judge’s
findings that the facts did not support a “use” conviction after Bailey and the jury
instructions given at defendant’s trial did not require the jury to make the findings
necessary to sustain the conviction under the “carry” prong. The district court
evaluated defendant’s case under United States v. Holland , 116 F.3d 1353 (10th
Cir.), cert. denied , 118 S. Ct. 253 (1997), and considered the evidence and the
instructions given to determine whether the jury’s verdict was the functional
equivalent of a guilty verdict on a “carry” violation. The Holland analysis
employed by the district court, however, was “supplanted by the holding in
Bousley v. United States , 523 U.S. 614, 118 S. Ct. 1604 . . . (1998), that collateral
Bailey claims require actual innocence of the § 924(c) charge before relief may be
granted.” United States v. Leopard , 170 F.3d 1013, 1016 (10th Cir. 1999).
Because defendant did not challenge the “use and carry” instructions in his
direct criminal appeal, his claims based on those instructions are procedurally
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barred. See Bousley , 118 S. Ct. at 1610. 2
Accordingly, to overcome the
procedural bar, he must show “cause and prejudice” or “actual innocence.” See
id. at 1611. Defendant’s argument that the legal basis for his claim was not
available at the time of his trial and direct appeal so it would have been futile to
attack his conviction before Bailey , does not establish cause for the default
without exceptional novelty not present here. See id. Therefore, to obtain
collateral review of his § 924(c) claim, defendant must show his actual innocence
of the charge.
To establish his actual innocence, defendant “must demonstrate that, in
light of all of the evidence, it is more likely than not that no reasonable juror
would have convicted him.” Id. (quotations omitted). A “carrying” conviction
requires that there was a drug trafficking crime, the firearm was “carried,” and the
“carrying” was during and in relation to any drug trafficking. See 18 U.S.C.
§ 924(c)(1). Here, plaintiff admitted that he had a gun and drugs in his fanny
pack as he drove his car and as he walked away from it. Consequently, this
admission is sufficient to support a conviction under the “carry” prong of
2
The government raised procedural bar for the first time on appeal. Even if
the government had not done so, this court has the authority to do so sua sponte,
see United States v. Allen , 16 F.3d 377, 378-79 (10th Cir. 1994), so long as
defendant has an opportunity to respond to the defense, see United States v.
Warner , 23 F.3d 287, 291 (10th Cir. 1994). Here, defendant’s answer brief on
appeal provided him an opportunity to respond to the procedural bar defense.
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§ 924(c). See Muscarello v. United States , 524 U.S. 125, 118 S. Ct. 1911, 1914,
1919 (1998) (holding conviction under “carry” prong satisfied where gun was in
trunk or locked glove compartment of automobile). Defendant cannot
demonstrate that he is actually innocent of the § 924(c) violation. Therefore, we
may not address the merits of his Bailey claim because the claim is procedurally
barred. See, e.g. , Powell , 159 F.3d at 504.
Defendant’s motion to bar the government’s appeal is DENIED. The
judgment of the district court vacating defendant’s conviction under 18 U.S.C.
§ 924(c)(1) is REVERSED and this case is REMANDED with directions to
reinstate the conviction. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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