The HONORABLE RICHARD H. KYLE, United States District Judge for the 1 District of Minnesota, sitting by designation. The Hon orable Donald J. Stohr, United States District Judge for the Easter n 2 District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3048

___________ Daniel T. Bradshaw, Sr., * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. United States of America, * * Appellee. *

___________ Submitted: June 10, 1998 Filed: August 20, 1998

___________ Before WOLLMAN and MURPHY, Circuit Judges, and KYLE, District Judge. 1

___________ WOLLMAN, Circuit Judge. Daniel T . Bradshaw appeals from the district court’s judgment and orde r 2 denying his 28 U.S.C. § 2255 petition for postconviction relief. We affirm.-2- I. In June of 1992, Douglas Scott Huber was the target of surveillance by the Drug Enforcement

Administration (DEA) for suspicion of conspiracy to distribute cocaine in St. Louis, Missouri. On June 16, an undercover officer telephoned Huber an d informed him that he

would be traveling to St. Louis shortly thereafter with a delivery of ten kilograms of cocaine that Huber had earli er agreed to purchase. Two days later, the officer telephoned Huber again and told him that he had arrived in the city. Huber agreed to meet him at a local motel to complete the transaction. During that same time, DEA agents observed Bradshaw and William La ngendorf arrive at Huber’s place of busines s in a Ford Bronco. Bradshaw got out of the vehicle and ent ered the building. Langendorf, the driver, remained outside. Shortly afte r Huber ended his phone call with the undercover officer, Huber and Bradshaw exited th e building and departed in the Bronco with Langendorf. As the three neared thei r des tination, Bradshaw opened the gym bag he had brought with him and removed a loaded

. 44 magnum revolver. Bradshaw then said, “I ain’t going to need this,” an d wedged the gun between the driver’s seat and the console. When they arrived at the motel, Bradshaw, carryin g the gym bag, and Huber got out of the Bronco and went to the room to which the undercover officer had directed Hu ber. The officer met them at the door and let them in. Bradshaw opened the ba g and displ ayed $102,000 in cash. He stated that he and Huber wanted to purchase six kilograms of cocaine at that time and another four kilograms the following day. After the exchange occurred, Bradshaw and Huber were arrested.
Both Brads haw and Huber were charged with one count of conspiracy t o distribute cocaine in violation of 21 U.S.C. § 846 and one count of carrying a firearm in relatio n to a drug trafficking crime in violation of 18 U.S.C. § 924(c). Th e indictment of Bradshaw on the firearm count charged that he “knowingly used and-3-

carried” a firearm in violation of section 924(c)(1). Bradshaw and Huber were tried together. The jury instructions on the firearm charge, to which Bradshaw made n o objection, stated:
The phrase “uses or carries a firearm” means having a firearm, o r firearms, available to assi st or aid in the commission of the crime alleged in Count I of the indictment.
In determining whether a defendant used or carried a firearm, you ma y consider all of the factors received in evidence in the case including the nature of the underlying drug trafficking crime alleged, the proximity of the defendant to the firearm in question, the usefulness of the firearm to the crime alleged, an d the circumstances surrounding the presence of the firearm. The gover nment is not required to show that the defendant actuall y displayed or fire d the weapon. The government is required, however, to prove beyond a

reasonable doubt that the firearm was in the defendant’s possessio n

or under the defendant’s control at the time that a dru g trafficking crime was committed.
Instruction No. 17. The jury convicted Bradshaw and Huber on both the dru g conspiracy and firearm counts.
Bradsha w was sentenced to 121 months in prison for the conspiracy and a consecutive 60-month sentence on the firearm charge. His sentence also included five year s of supervised release and a $100 special assessment. We affirmed hi s convictions on direct appeal. See United States v. Huber , 2 F.3d 304 (8th Cir. 1993).

Br adshaw filed this petition seeking to have the district court vacate hi s conviction on the firearm charge in light of the Supreme Court’s decision in Bailey v. United States , 516 U.S. 137, 143 (1995). He also filed a motion for an evidentiary-4-

heari ng. After reviewing the parties’ records and briefs, the court denied the petition without a hearing.
II. We review the district court’s dismissal of Bradshaw’s 28 U.S.C. § 2255 pet ition for postconviction relief de novo. See United States v. Duke , 50 F.3d 571, 576 (8th Cir. 1995). Section 924(c)(1) of Title 18 provides, in pertinent part: Whoever, d uring and in relation to any crime of violence or dru g trafficking crime (including a crime of violence or drug trafficking crime which provides for an

enhanced punishment if committed by the use of a deadly or d angerous weapon or device) for which he may be prosecuted in a court of the United States, us es or carries a firearm, shall, in addition to the punishment provided f or such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years . . . . 18 U.S.C. § 924(c)(1) (Supp. 1998).

In Bailey , the Supreme Court held that a conviction under section 924(c)(1) for “use” o f a firearm during and in relation to a drug trafficking crime requires evidence sufficient to show “active employment” of the firearm by the defendant. 516 U.S. at 143 (1995). “The language of § 924(c)(1), supported by its history and context , compels the conclusion that Congress intended ‘use’ in the active sense of ‘to avai l oneself of.’” Id. at 150. Thus, “[t]o sustain a conviction under the ‘use’ prong of § 924(c)(1), the Government must show that the defendant act ively employed the firearm during and in relation to the predicate crime.” Id.Prior to Muscarello , we had held that “transporting a firearm in the passenger 3 compartment of a vehicle s atisfies the ‘carry’ prong of section 924(c).” United States v. Willis , 89 F.3d 1371, 1378 (8th Cir.), cert. denied , 117 S. Ct. 273 (1996) (citin g United States v. Freisinger , 937 F.2d 383, 387 (8th Cir. 1991)). The government also contends that Bradshaw’s argument is procedurall y 4 defaulted because of his failure to objec t to the jury instructions at trial. We have held in similar circumstances, however, that a Bailey issue is properly raised on a petition for postconviction relief when the petitioner has challenged the sufficiency of th e evidence on his section 924(c)(1) convic tion on direct appeal. See, e.g. , United States v. Behler , 100 F.3d 632, 638-39 (8th Cir. 1996), cert. denied , 118 S. Ct. 152 (1997); United States v. Herron , 97 F.3d 234, 237 n.4 (8th Cir. 1996), cert. denied , 117 S. Ct. 998 (1997); Willis , 89 F.3d at 1378 n.3. Because Brad shaw challenged the sufficiency of the evidence on his section 924(c)(1) conv iction on direct appeal, see Huber , 2 F.3d at 305, we will consider his argument and review for plain error affecting his substantial rights. See United States v. Aikens , 132 F.3d 452, 455 (8th Cir. 1998). -5- In Muscarello v. United States , 118 S. Ct. 1911 (1998), the Court held that a convicti onmay be supported under the “carry” prong of section 924(c)(1) when a person “knowingly possesses and conveys firearms in a vehicle, in cluding in the locked glove compartment or trunk of a car, which th e person accompanies.” Id. at 1913-14. 3
Bradshaw contends tha

t since he did not actively employ his revolver during or in rel ation to his underlying drug trafficking crime, he could not have been properl y convicted for “use” of his firearm in connection with th at offense in light of the holding in Bail ey . Thus, he claims that he was prejudiced by the jury instructions, whic h erroneously defined “uses” and “carries” interchangeably.

In response, the government concedes that the jury instruction regarding th e “use” prong of section 924(c)(1) constituted plain error under Bailey , but argues that the error was harmless and did not affect Bradshaw’s substantial rights. 4Bradshaw’s argument that the “carry” prong of section 924(c)(1) requires the 5 weapon to have been “immediately accessible” was laid to rest in Muscarello

. See 118 S. Ct. at 1919. -6- Bradshaw’s underlying crime was conspiracy to distribute cocaine. He was, as Huber described him, the conspiracy’s “money man.” In furtherance of the conspiracy, he loaded the gun with ammunition and brought it with him to Huber’ s place of business when summoned to participate in an imminent drug transaction. In furtherance of the conspiracy, he used the w eapon to safeguard the large amount of cash he was carrying
a s he and the others transported it to the motel to purchase cocaine. When he arrived atthe motel, he removed the weapon from the gym bag where it had been concealed, brandis hedit to his cohorts so that they were aware of it, and wedged it between th e se atand console next to Langendorf where it would be available for immediat e protective use. It is beyond any doubt, then, that Bradshaw “carried” his .44 magnum revolver “d uring and in relation to” his participation in the conspiracy within th e meaning of section 924(c)(1). Se e Muscarello , 118 S. Ct. at 1913-14; United States v. Summers , 137 F.3d 597, 600-01 (8th Cir. 1998) (discussing section 924(c)(1) in context of criminal conspiracy). 5
Bradshaw a lso asserts that Behler provides support for his contention that th e instr uctional error was not harmless. 100 F.3d at 639. In that case, however, th e instructions to the

jury erroneously defined the term “used,” while failing to define the term “carry.” Id. Here, the two terms were defined interchangeably in an instruction that was in accord wi th the Supreme Court’s pronouncements in Muscarello regarding the “carry” prong of section 924(c)(1). In Behler’s case, the gun in question was found in his resid ence, and the testimony of two of his girlfriends was the only evidence that wouldhave supported a finding that he had “carried” the weapon within the meaning of section 924(c). See United States v. Behler , 14 F.3d 1264 (8th Cir. 1994). Thus, the possibil ity that the jury might have found Behler guilty of only the “use” prong o f section 924(c) was so substantial that it warranted granting him relief under Bailey. In-7-

the present case, however, the jury could not have found that Bradshaw had “used” the weapon within the meaning of the court’s instruction without also finding that he had “carried” it.
Thus , because the evidence overwhelmingly supported Bradshaw’s convictio n forhaving “ carried” a firearm “during and in relation to” his conspiracy to distribut e cocaine, he was not prejudiced by any instructional error, and his substantial rights have not been affecte d. See Aikens , 132 F.3d at 455; 18 U.S.C. § 924(c)(1). Accordingly, the district court correctly denied Bradshaw’s petition.
III.
Bradshaw also contends that the distric t court erred in denying his request for an evidentiary hearin g. 28 U.S.C. § 2255. In considering the court’s denial of a hearing, we review conclusions of law, as well as mixed questions of law a nd fact, de novo. See Hollo way v. United States , 960 F.2d 1348, 1351 (8th Cir. 1992). “We review th e district court’s deci sion as to whether an evidentiary hearing is necessary to determine factual contentions for an abuse of discretion.” Engelen v. United States , 68 F.3d 238, 241 (8th Cir. 1995).

Br adshaw has not asserted the existence of any factual disputes to be resolve d or any new evidence which might be developed a t an evidentiary hearing. Our de novo revie w satisfies us that the district court was correct in concluding that the motions , files, and records conclusively demonstrated that Bradshaw was not entitled to relie f under Bailey

. See Duke , 50 F.3d at 576; 28 U.S.C. § 2255. The c ourt therefore did not err in declining to afford him an evidentiary hearing. The judgment is affirmed.-8-

A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.