* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation
. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 29 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. ERIC GILMER,

Defendant-Appellant. No. 96-1489 (D.C. No. 96-N-1189) (D. Colo.)

ORDER AND JUDGMENT *

Before KELLY and HENRY , Circuit Judges, and DOWNES , ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Eric Gilmer appeals from the district court’s denia l of his motion to vacate judgment and sentence pursuant to 28 U.S.C. § 2255. Gilmer seeks vacation of his conviction and five-year sentence for using or carrying a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1), which we had affirmed on direct appeal. See United States v. Gilmer , No. 93-1034, 1993 WL 425117 (10th Cir. Oct. 21, 1993) (unpublished). Re lying on Bailey v. United States , 516 U.S. 137 (1995), issued subsequent to his con viction, he argues that the jury was incorrectly instructed on the “use” pr ong of § 924(c)(1) and that his conviction and sentence therefore cannot stand. Th e district court agreed that the use instruction was incorrect, but held that Gilmerwas not prejudiced by the faulty instruction because the undisputed evidence supported his conviction under the “carry” prong. Because of recent clarification s of the law, our analysis differs somewhat from the district court’s, but we nonethel ess affirm. We agree that Baileyapplies retroactively to cases on collateral revie w. See United States v. Holland , 116 F.3d 1353, 1355 (10th Cir.), cert. denied , 118 S. Ct. 253 (1997). Gilmer was charged in the alter native with both using and carrying a firearm. “‘[A]n erroneous “use” instruc tion does not require reversal of the conviction when the jury was also instructedwithout objection on “carry,” the defendant did not dispute that the firearm was carried on his person or in his vehicle, and the jury verdict necessarily includes an inherent finding of “carrying-3-

during and in relation to the drug crime.”’” Unite d States v. Durham , ___ F.3d ___, Nos. 96-5107, 96-5108, 96-5118, 1998 WL 130891 , at *10 (10th Cir. March 24, 1998) (quoting Holland , 116 F.3d at 1359 n.4). “A conviction under the ‘carry’ prong of section 924(c)(1) requires pos session of the firearm through dominion and control, and transportation or movement of the weapon,” as well as proof that the firearm was carried “‘during and in relation to’ a drug trafficking offense.” United States v. Richardson , 86 F.3d 1537, 1548 (10th Cir.) (quoting § 924(c)(1)), cert. denied , 117 S. Ct. 588 (1996). As the district court not ed, the jury here was not instructed on the transportation or movement aspect of carry. We held in Durhamthat that omission does not preclude affirming und er the “carry” prong as long as “the jury’s verdict ‘neces sarily embraced all of the elements of a “carrying” violation.’” Durham , 1998 WL 130891, at *10 (quoting Holland , 116 F.3d at 1359 n.4). As in Durham , the jury was instructed without objection that to convict Gilmer of using or carrying a firearm under § 924(c ), it had to find that he “possessed” the firearm “during and in relation to” a drug trafficking crime. Thus, the jury’s guilty verdict necessarily embrace d these two elements. See id. Moreover, we conclude that the jury could not have found possession of the firearm without also finding that Gilmer transporte d the firearm in his car.-4-

The only firearm the jury considered was one found in the console of the car Gilmer had been driving. It is undisputed thatGilmer drove the car, was its sole occupant, and exited it just prior to being ar rested. It is also undisputed that there was no one in the car between the time he exi ted it and the time the officers opened and searched it and found the firearm. Agai n, as in Durham , “[w]e can see no way for the jury to have found that [Gilmer] was in possession of the firearm at the time of the stop without also findin g that [Gilmer] had transported the firearm to that location in the first place.” 1998 WL 130891, at *11. We therefore conclude that the jury’s verdict incorpor ated all of the findings necessary to convict under the “carry” prong of § 9 24(c). AFFIRMED.

ENTERED FOR THE COURT PER CURIAM