UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4526
KELVIN D. SHERMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Chief District Judge.
(CR-95-464)
Submitted: January 23, 1997
Decided: February 10, 1997
Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James C. Clark, LAND, CLARK, CARROLL & MENDELSON,
Alexandria, Virginia, for Appellant. Helen F. Fahey, United States
Attorney, W. Neil Hammerstrom, Jr., Assistant United States Attor-
ney, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kelvin D. Sherman was convicted by a jury of carrying a firearm
during a drug trafficking offense (18 U.S.C. § 924(c)(1) (1994)), and
possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1)
(1994)). He appeals his conviction and sentence. On appeal, Sherman
asserts that the district court's instruction on the§ 924(c) charge,
which only required the jury to find constructive possession of the
firearm, was improper under Bailey v. United States, 516 U.S. ___,
64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448, 94-7492), and,
therefore, amounted to reversible error. Finding no error, we affirm.
Sherman's arrest resulted from a reverse sting operation; he
arranged to buy two kilograms of cocaine from an undercover drug
enforcement agent and to use his vehicle as collateral. After placing
the drugs in the rear of the vehicle, Sherman told the agents that he
needed to retrieve a radar detector and cellular phone from the vehi-
cle. Sherman was arrested as he opened the glove compartment of the
vehicle. Incident to Sherman's arrest, officials seized a radar detector
and a fully-loaded 9mm semi-automatic pistol from the glove com-
partment.
At trial, the district court instructed the jury that in order to find
Sherman guilty of the § 924(c) charge, carrying a firearm during a
drug trafficking offense, he had to knowingly carry the firearm. The
district court gave the following definition of carrying a firearm:
The phrase carries a firearm means having firearms avail-
able to assist or aid in the commission of the crime charged
in Count One of the indictment. In determining whether the
defendant carried a firearm, you may consider all the factors
received in evidence in the case, including the nature of the
drug trafficking alleged, the proximity of the defendant to
the firearm in question, the usefulness of the firearm to the
crime alleged and the circumstances surrounding the pres-
ence of the firearm. The government is required to prove
beyond a reasonable doubt that the firearm was in the defen-
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dant's possession and under the defendant's control at the
time that a drug trafficking crime was committed.
On appeal, Sherman contends that these instructions were insufficient
under Bailey because they did not require proof that the firearm was
actively employed during the drug transaction or was an operative
factor in relation to the drug trafficking offense. We disagree.
Sherman was indicted and convicted for carrying a firearm, not for
using a firearm. In Bailey, while the Supreme Court narrowly defined
the "use" prong of § 924(c)(1) to require proof that a defendant
actively employed the firearm during and in relation to the predicate
crime, it did not disturb prior interpretations of the alternate "carry"
prong of the statute. Bailey, 64 U.S.L.W. at 4041-43. This court has
adhered to the principle that if the firearm was present for protection
and to facilitate the likelihood of the success of the drug trafficking
offense, whether or not it was actually used, such evidence is suffi-
cient to support a conviction under the carry prong of § 924(c)(1).
United States v. Hayden, 85 F.3d 153, 161-62 (4th Cir. 1996); see
United States v. Barry, 98 F.3d 373, 377-78 (8th Cir. 1996) (defen-
dant "carried" weapon in connection with a drug offense when he had
a loaded weapon in an unlocked glove compartment of the vehicle
used to transport drugs).
The district court's instructions complied with our interpretation of
carrying a firearm during a drug trafficking offense and clearly
directed the jury to find the defendant guilty of more than construc-
tive possession of the weapon, contrary to Sherman's contention. Fur-
ther, we find sufficient evidence to support Sherman's conviction.
The loaded pistol was located in the unlocked glove compartment of
Sherman's vehicle. He was within close proximity to the weapon at
times throughout the transaction and was in the process of retrieving
items from the glove compartment at the time of his arrest. Although
he did not carry the firearm on his person, it was in a position that was
both available for use and within his reach. Finding no reversible
error, we affirm Sherman's convictions and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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