*This order and judgment is not binding precedent, except under the doctrines of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.

F I L E D

United States Court of Appeals

Tenth Circuit

NOV 7 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-4090

v. (D. Utah)

TOMAS EDWARD ELROD,

Defendant - Appellant.

(D.C. No. 96-CV-343 G) 

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1Because petitioner filed his § 2255 motion in the district court on April 17, 1996,

prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, a

certificate of appealability is not required. See United States v. Kunzman, No. 96-1310,

1997 WL 602507, at *3 n.2 (10th Cir. Oct. 1, 1997).

2Petitioner was also charged in a separate indictment with one count of possession

of a controlled substance with the intent to distribute in violation of 21 U.S.C. § 841(a). 

Petitioner pled guilty to this charge as well and is currently serving time in the custody of

the California State Penal System.

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Tomas Edward Elrod appeals from the district court’s dismissal of his 28

U.S.C. § 2255 petition to vacate, set aside, or correct an illegal sentence. We

affirm the district court’s dismissal of the petition.1

Petitioner pleaded guilty to one count of conspiracy to manufacture

methamphetamine in violation of 21 U.S.C. § 846 and one count of using or

carrying a firearm during and in relation to a drug trafficking crime in violation of

18 U.S.C. § 924(c).2

 In the original judgment entered in July 1989, the district

court sentenced petitioner to 114 months’ imprisonment; a modified judgment was

entered in June 1993.

In April 1996, petitioner filed in district court his § 2255 motion asking the

court to vacate his sentence for the offense of using or carrying a firearm in

relation to a drug trafficking offense, asserting that his conviction is now

improper based on the Supreme Court’s ruling in Bailey v. United States, 116 S.

Ct. 501 (1995). In particular, petitioner argued that the Court’s more narrow

interpretation of the “use” prong of § 924(c) should apply equally to the “carry”
3

In fact, although petitioner asserts that the “use” analysis applied by the Supreme

(continued...)

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prong, thus invalidating his guilty plea. The U.S. Magistrate Judge issued his

Report and Recommendation in January 1997, recommending the petition be

denied. In June 1997, the district court approved the recommendation of the

magistrate and denied petitioner’s § 2255 motion.

Because petitioner was convicted pursuant to a guilty plea rather than a jury

trial, we must only “‘mak[e] such inquiry as shall satisfy [us] that there is a

factual basis for the plea.’” United States v. Barnhardt, 93 F.3d 706, 709 (10th

Cir. 1996) (quoting Fed. R. Crim. P. 11(f)). Accordingly, the determination of

petitioner’s motion depends on whether there is an adequate factual basis for his

guilty plea. Id. at 709-10; United States v. Ruth, 100 F.3d 111, 112 (10th Cir.

1996).

“The acceptance of a guilty plea is deemed a factual finding that

there is an adequate factual basis for the plea.” Therefore, our

review is under the clearly erroneous standard, and a finding of fact

is not clearly erroneous unless it is without factual support in the

record or, after reviewing all the evidence, we are left with a definite

and firm conviction that a mistake has been made.

Barnhardt, 93 F.3d at 710 (citations omitted). 

Although Bailey effectively overruled our prior cases relating to the “use”

prong of § 924(c), there is “nothing in Bailey that conflicts with our pre-Bailey

‘vehicular carrying’ line of cases.3 United States v. Miller, 84 F.3d 1244, 1259
3

(...continued)

Court in Bailey should be applied equally to the “carry” prong of § 924(c), it is clear that

this is not what the Court intended. As the Court stated, “Congress used two terms [i.e.,

“uses” and “carries”] because it intended each term to have a particular, nonsuperfluous

meaning.” Bailey, 116 S. Ct. at 507.

4We acknowledge that petitioner and the government disagree over whether the

firearm was found in an unlocked suitcase behind the passenger seat or in the bed of his

truck. Respondent’s Br. at 2. However, we do not find this disagreement significant.

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(10th Cir.) cert. denied, 117 S. Ct. 443 (1996), and overruled on other grounds by

United States v. Holland, 116 F.3d 1353 (10th Cir. 1997). As such, our preBailey carrying cases, holding that the government is required to prove “only that

the defendant transported a firearm in a vehicle and that he had actual or

constructive possession of the firearm while doing so,” are still valid. Miller, 84

F.3d at 1259; see also United States v. Richardson, 86 F.3d 1537, 1548 (10th Cir.

1996) (“A conviction under the ‘carry’ prong of section 924(c)(1) requires

possession of the firearm through dominion and control, and transportation or

movement of the weapon.”). In this case, although petitioner did not “use” the

firearm as Bailey defines “use” in terms of § 924(c), it is clear that petitioner

carried a firearm. He admitted at the time of his arrest that he had a firearm in his

vehicle, and a 9mm pistol was subsequently found along with other drug

paraphernalia.4 Petitioner’s Br. at 4; Respondent’s Br. at 2. Because we find that

petitioner’s conduct meets the definition of “carry” under § 924(c), we conclude
5Petitioner also argues that there is insufficient evidence that he used or carried a

firearm “during and in relation to” the drug offense as that phrase was interpreted by the

Supreme Court in Smith v. United States, 508 U.S. 223 (1993). Petitioner’s Br. at 10-11. 

 To the extent that our pre-Smith and pre-Bailey cases presume a connection between

guns and drug trafficking if the defendant had access to a weapon during a drug offense,

petitioner urges that these precedents be overruled. Petitioner’s Br. at 11 n.6; see, e.g.,

United States v. Coslet, 987 F.2d 1493, 1495 (10th Cir. 1993). We disagree, and

conclude that there has been no change in the law with respect to that portion of the

statute. See United States v. Holland, 116 F.3d 1353, 1359 (10th Cir. 1997) (stating that

the “‘during and in relation to’ element was not affected by the holding in Bailey”). The

law was, and still is, that the firearm must have some purpose or effect with respect to the

drug trafficking crime and that the gun must at least facilitate or have the potential of

facilitating the drug trafficking offense. Smith, 508 U.S. at 237-38. That standard is met

here.

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that he has suffered no prejudice from the change in the law with respect to “use”

and that there is an adequate factual basis for his plea.5

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge