UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-60310

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT MORRIS,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Mississippi

(3:96-CV-166-LN)

June 6, 1997

Before POLITZ, Chief Judge, WIENER and STEWART, Circuit Judges.* Pursuant to Local Rule 47.5, the court has determined that this opinion should

not be published and is not precedent except under the limited circumstanc e s set

forth in Local Rule 47.5.4.

2 POLITZ, Chief Judge: *

The opinion rendered here in on May 23, 1997 is withdrawn and the

following is substituted in its place.

Robert Morris appeals the decision of the district court to retry him for

violating 18 U.S.C. § 924(c)(1). Finding that the government presented sufficient

evidence that Morris carried a firearm during and in relation to a drug trafficking

offense, we affirm.

BACKGROUND

On May 18, 1992, police officers in Jackson, Mississippi executed a search

warrant on Robert Morris’s residence and found Morris and two others in the den.

Morris was sitting on a sofa wrap p ed in a comforter which hid bags containing

1206 grams of marihuana and approximately $92 00 in cash. At the time Morris

w eighed nearly 400 pounds, suffered from chronic heart and lung ailments, and

could walk only with the aid of crutches. At trial the police officers testified that

they found a loaded Colt .25 caliber semi-automatic pistol under a newspaper on

the table next to the sofa. Morris testified that the weapon was located in a

briefcase 18-feet distant.1 18 U.S.C. § 924(c)(1).

2 United States v. Morris , No. 93-07229 (5th Cir. April 1, 1994).

3 116 S. Ct. 501 (1995).

4 We note th at B ailey applies retroactively on collateral review under United

State s v. McPh ail , ____ F.3d ____ (5th Cir. 1997), even though that issue is not

before us because the government did not cross-appeal the district court’s decision

to vacate the conviction based upon the “use” prong of section 924(c)(1).

3 Morris pled guilty to possession of marihuana with inte n t to distribute and

was tried and found guilty of using and carrying a firearm during and in relation to

a drug trafficking crime. 1 The district court sentenced him to 12 months in prison

on the drug count, 60 months for the firearm of f ense, two 3-year terms of

supervised release to be served concurrently, and a $3,000 fine. Morris appealed

and we affirmed his conviction and sentence in an unpublished opinion. 2

After serving the 12-month sentence for the drug offense Morris filed a

motion under 28 U.S.C. § 2255 to vacate his firearm conviction on the basis of the

Supreme Court’s interv ening decision in B ailey v. United States

. 3 The district

court granted the motion to vacate in part, concluding that under B ailey the

government failed to produce sufficient evidence that Morris used a firearm. 4 The

district court found, however, that the government presented sufficient evidence to

convict under the carry prong of section 924(c)(1). Because at trial the jury had not5 United States v. Hall , ____ F.3d ____ (5th Cir. 1997).

4 been given a carry instruction, the district court ordered a new trial to determine

whether Morris carried a firearm within the meaning of section 924(c)(1). Morris

timely appealed.

ANALYSIS

Morris contends t hat the government presented insufficient evidence to

support a conviction for carrying a firearm under section 924(c)(1) and, therefore,

t hat retrying him would violate the double jeopardy bar. We have held that to

sustain a carrying conviction the prosecution must show that the defendant

transported the firearm or had it within his reach during and in relation to the

commission of the underlying offense. 5 In the case at bar, the government

presented sufficient evidence that had the jury been instructed on the carry prong,

it rationally could have found Morris guilty. The police officers testified that the

firearm was located next to the sofa on which Morris was seated. Morris

challenged this e vidence. The jury reasonably could have concluded that the

firearm was within Morris’s reach during the commission of the drug offense. That

is a classic jury call.

The judgment appealed is AFFIRMED.