* This order and judgment is not binding precedent, e xcept under the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

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

### JUN 16 1999 

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

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. ROY SPENCER HARMON,

Defendant-Appellee. No. 98-4151 (D.C. No. 96-CV-795-K) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and BRISCOE , Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 A certificate of appealability is not required from the United States. See

United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998). -2- The United States appeals the district court’s orde r granting defendant Roy Spencer Harmon relief on his motion filed under 28 U.S.C. § 2255. The district court vacated defendant’s conviction under 18 U.S.C . § 924(c)(1) for using or carrying a firearm during and in relation to the co mmission of a drug trafficking crime and granted him a new trial. The district co urt also ordered that defendant’s base offense level be reduced from fourteen to twelve and that his claims of ineffective assistance of counsel and per jured testimony be denied; the government does not challenge those rulings. Our j urisdiction arises from 28 U.S.C. § 1291. We reverse and remand with direc tions to reinstate the conviction under § 924(c)(1). 1 Defendant was arrested as he got out of his automob ile. He was wearing a fanny pack which contained 125 doses of LSD, cash, and a .25 caliber automatic pistol. As noted above, he was convicted of violat ing § 924(c)(1). His conviction was affirmed on appeal. See United States v. Harmon , 996 F.2d 256, 257 (10th Cir. 1993). In that appeal, defendant alleged thatthe jury instructions erroneously defined “in relation to” as used in the charge of u sing or carrying a firearm during and in relation to a drug crime. See id. He did not challenge the instructions for “using or carrying.” Subsequently, the Supreme Court decided Bailey v. United-3-

States , 516 U.S. 137 (1995), interpreting the “use” prong of § 924(c), defining it more narrowly than lower courts had previously defi ned it, and holding that “the government must prove active employment of the fire arm during and in relation to the predicate crime.” United States v. Powell , 159 F.3d 500, 501 (10th Cir. 1998), cert. denied , 119 S. Ct. 1088 (1999). Defendant then filed this § 2255 petition in which he challenged his “use and/or carry” conviction. The district court adopt ed the magistrate judge’s findings that the facts did not support a “use” conviction after Bailey and the jury instructions given at defendant’s trial did not req uire the jury to make the findings necessary to sustain the conviction under the “carry” prong. The district court evaluated defendant’s case under United States v. Holland , 116 F.3d 1353 (10th Cir.), cert. denied , 118 S. Ct. 253 (1997), and considered the evidenc e and the instructions given to determine whether the jury’s verdict was the functional equivalent of a guilty verdict on a “carry” violation. The Holland analysis employed by the district court, however, was “suppl anted by the holding in Bousley v. United States , 523 U.S. 614, 118 S. Ct. 1604 . . . (1998), that collateral Bailey claims require actual innocence of the § 924(c) ch arge before relief may be granted.” United States v. Leopard , 170 F.3d 1013, 1016 (10th Cir. 1999). Because defendant did not challenge the “use and carry” instructions in his direct criminal appeal, his claims based on those i nstructions are procedurally2 The government raised procedural bar for the first time on appeal. Even if

the government had not done so, this court has the authority to do so sua sponte, see United States v. Allen , 16 F.3d 377, 378-79 (10th Cir. 1994), so long as defendant has an opportunity to respond to the defense, see United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994). Here, defendant’s answer brief on appeal provided him an opportunity to respond to th e procedural bar defense. -4- barred. See Bousley , 118 S. Ct. at 1610. 2Accordingly, to overcome the procedural bar, he must show “cause and prejudice” or “actual innocence.” See id. at 1611. Defendant’s argument that the legal basi s for his claim was not available at the time of his trial and direct appea l so it would have been futile to attack his conviction before Bailey , does not establish cause for the default without exceptional novelty not present here. See id. Therefore, to obtain collateral review of his § 924(c) claim, defendant must show his actual innocence of the charge. To establish his actual innocence, defendant “must demonstrate that, in light of all of the evidence, it is more likely tha n not that no reasonable juror would have convicted him.” Id. (quotations omitted). A “carrying” conviction requires that there was a drug trafficking crime, the firearm was “carried,” and the “carrying” was during and in relation to any drug trafficking. See 18 U.S.C. § 924(c)(1). Here, plaintiff admitted that he had a gun and drugs in his fanny pack as he drove his car and as he walked away fromit. Consequently, this admission is sufficient to support a conviction und er the “carry” prong of-5-

§ 924(c). See Muscarello v. United States , 524 U.S. 125, 118 S. Ct. 1911, 1914, 1919 (1998) (holding conviction under “carry” prong satisfied where gun was in trunk or locked glove compartment of automobile). Defendant cannot demonstrate that he is actually innocent of the § 9 24(c) violation. Therefore, we may not address the merits of his Bailey claim because the claim is procedurally barred. See, e.g. , Powell , 159 F.3d at 504. Defendant’s motion to bar the government’s appeal i s DENIED. The judgment of the district court vacating defendant’s conviction under 18 U.S.C. § 924(c)(1) is REVERSED and this case is REMANDED w ith directions to reinstate the conviction. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe Circuit Judge