United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3619

___________ United States of America, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Donald Larkin, Jr., * * Appellee. *

___________ Submitted: April 18, 1997 Filed: July 8, 1997

___________ Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

___________ WOLLMAN, Circuit Judge. The United States appeals the district court’s order vacating D onald Larkin, Jr.’s conviction and sentence for using or carryi ng a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). We reverse and remand. I. In January of 1995, a confidential informant notified St. Louis police officers that a black male known as “Donde” would be making a delivery of cocaine and cocaine-2- -2- base to a parking lot located in St. Louis at 4:30 that afternoon. The informan t described the car that Donde would be driving and stated that Donde w ould be carrying a firearm. The officers surveilled the lot, and at approximately 4:30 or 4:45 tha t afternoon a car matching the description arrived. The officers watched the driver, later identified as Larkin, for about ten minutes before deciding to approach the car to ask for identification. As Detective Robert Siscel approached the car, he noticed Larkin lean down toward the floorboard of the car. When Siscel arrived at the driver’s side of the car, he noticed the grips of a handgun protruding from under th e driver’s seat and or dered Larkin out of the car. Siscel then retrieved a .32 caliber revolver from under the driver’s seat and arrested Larkin. Upon a subsequent search of Larkin’s vehicle, the officers found a bag containing cocaine powder and cocaine base inside the driver’s side door. Larkinwas indicted on three counts of possession with intent to distribute a cont rolledsubstance, one count of being a felon in possession of a firearm, and on e count of using or carrying a firearm during a drug trafficking crime. Pursuant to plea negotiations, the government dismis sed the possession of a firearm charge, and Larkin pl ed guilty to the remaining charges. Larkin was sentenced to 120 months ’ incarc eration for the three drug trafficking counts and received a consecutive sixty

month sentence on the firearm count. Larkin appealed, challenging only the constitutionality of the 100:1 quantity ratio for crack cocaine. We affirmed in an unpublishe d opinion. Larkin then filed a petition fo r rehearing and suggestion for rehearing en banc, arguing for reconsideration of his co nvictionfor using or carrying a firearm during a drug trafficking crime. W e remanded the

case to the district court for further proceedings in light of the Supreme Cou rt’s decision in Bailey v. United States , 116 S.Ct. 501 (1995). On remand, th e court found that Larkin had pled guilty only to use of a firearm and concluded tha t Larkin was not guilty of using of a firearm under Bailey . In addition, the cour t concluded that Larkin did not have the firearm on his person and was therefore not-3- -3- guilty of c arrying a firearm under section 924(c)(1). The court therefore vacate d Larkin’s conviction and sentence on the firearm count. II. The gove rnment argues that the district court erred in vacating Larkin’ s conviction for using or carrying a firearm because the evidence was sufficient t o establish that Larkin “carried” the firearm during the drug transaction. We agree. The Court in Bailey

determined that the

term “use” in section 924(c)(1) denotes active e mployment of a firearm. 116 S. Ct. at 509. The Court’s opinion did nothing, however, to alter the proof needed to establish that a defendant carried a firearm, and the ordinary meaning of “carry” therefore applies. See U nited States v. Willis , 89 F.3d 1371, 1378 (8th Cir.), cert. denied , 117 S. Ct. 273 (1996). We have not, as the district court concluded, limited the defi nition of “carry” only to having or bearing the firearm on one’s person, but rather have held that “transporting firearms in the passenge r comp artment

of a car loaded with drugs” constitutes carrying a firearm within th e meaning of section 924(c)(1 ). See United States v. Nelson , 109 F.3d 1323, 1326 (8th Cir. 1997) (citing United

States v. Freisinger , 937 F.2d 383, 387 (8th Cir. 1991), cert. denied , 65 U.S.L.W. 3814 (U.S. June 9, 1997) (No. 96-8920)). Larkin argues, however, that the government did not contend th at he had carried, nor did he admit to carrying a firearm. Larkin contends that because “carry” did not appear anywhere within the stipulation of facts relat ive to sentencing, he therefore pled guilty to and was convicted only of use of a firearm. We disagree. The indictment read as follows: On or about January 24, 1995, in the Eastern Distri ct of Missouri, Donald Larkin, Jr. the defendant herein, during and in relation to a drug-4- -4- trafficking crime, namely, the possession with the intent to distribut e cocaine base (crack ) and cocaine, Schedule II controlled substances, did use or carry a firearm, to wit: an H & R Industries .32 cal revolver
. (emphasis added). Larkin pled guilty to this charge, stating during the change of plea proceedings that he had read the indictment and had no questions about the charges. The stipulation of facts stated: 2.
. . . .

. . . [T]he defendant fully understands the elements of the crim e with which he has been charged and w hich he admits committing are that he possessed the named firearm during and in relation to the dru g trafficking crime of possession with the intent to distribute cocaine base, crack as mentioned [sic] the proceeding [sic] paragraphs.

. . . . 11.
. . . [T ]he defendant drove his vehicle to a location on North Kingshighway to del iver a quantity of cocaine and cocaine base. At that time he had in his possession a firearm which was used during and i n relation to that distribution offense. . . . [T]he police searched the vehicle and found cocaine powder and cocaine base and the firearm. Although the facts as admitted by Larkin do not establish the use of a firearm, as that term is defined in Bailey , they are more than adequate to establish that Larkin did carry the firearm, as that term is defined in Willis and Nelson
. The ord er is reversed, and the case is remanded for reinstatement of th e conviction and the sentence on the firearm count.-5- -5- A true copy. Attest: CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.