1 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 circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

for the Fifth Circuit

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No. 93-8290

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

STERLING TYRONE ADAMS,

Defendant-Appellant.

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Appeal from the United States District Court

for the W estern District of Texas

(A-02-CR-223-01)

______________________________________________________ August 12, 1996

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges

PER CURIAM: 1

After we affirmed Adams’ conviction on a drug tr afficking and related weapons

offense, the Supreme Court decided Bailey v. United States

, 116 S.Ct. 501 (1995). Adams’

case is before us on remand for reconsideration in light of Bailey

.

Adams was convicted of violating 18 U.S.C. § 924(c)(1) which imposes penalties

on any defendant who, “during and in relation to any crime of violence or drug trafficking

crime

. . . uses or carries a firearm.” In B ailey

, the Supreme Court determined that in order

to sustain a conviction under the “use” prong of 18 U.S.C. §924(c)(1), the government

must present evidence sufficient to show that the defendant actively employed the firearm.

However, the Court in Bailey expressly declined to decide what the government must show2 Adams’ other claims on appeal are denied for the reasons given in our original opinion.

2 to sustain a conviction on the “carrying” prong of §924(c)(1) and remanded that question

to the District of Columbia Circuit Court of Appeals.

Our holding that Adams was properly convicted under the “use” prong conflicts with

the rule announced by the Supreme Court in Bailey because Adams did not actively

employ his firearm in his drug trafficking crime. However, our opinion also found sufficient

evidence to convict Adams under the “carrying” prong of §924(c)(1). W e concluded that:

Adams' operation of the va n with knowledge that the gun was in the van

establishes the carrying requirement. U nited States v. Speer

, 30 F.3d 605,

612 (5th Cir.), cert. denied

, 115 S. Ct. 768 (1994). The gun was located on

the floor of the van under the driver's seat, next to the bag of cocaine. Proof

of the presence of the weapon under the driver's seat where Adams had just

been sitting while driving to the location of the planned drug transaction is

sufficient to meet the Government's burden.

We concluded in United States v. Fike

, 82 F.3d 1315 (5th Cir. 19 96) that a defendant

engaged in a drug transaction who is knowingly transporting a firearm under the seat in

a vehicle may be convicted under the “carrying” prong of §924(c)(1). S ee also

, United

States v. Pineda-Ortuno , 952 F.2d 98, 104 (5th Cir.) c ert. denied

, 504 U.S. 928 (1992)

(carrying requirement met “if the operator of the vehicle knowingly possesses the firearm

in the vehicle during and in relation to a drug trafficking crime”); United States v. Rivas

,

1996 WL 284972 (5th Cir. May 30, 1996)(guilty plea on carrying sufficiently supported by

evidence that pistol was underneath seat of car).

Thus, Bailey does not undermine our determination that the evidence was sufficient

to support Adams’ conviction for c arrying a firearm during and in relation to a drug

trafficking crime in violation of §924(c)(1). 2 Nevertheless, we must reverse and remand3

this case because we cannot be sure that the jury based its guilty verdict on the “carrying”

prong rather than the “liberal, pre- Bailey instructions on what constituted ‘u se’ of a

fire arm.” Fike , 82 F.3d at 1328. Adams’ conviction and sentence are, therefore,

REVERSED and REMANDED for a new trial on the “carrying” theory only.

REVERSED and REMANDED.