1 United States v. Logan , 949 F.2d 1370 (5th Cir. 1991).

2 116 S.Ct. 501 (1995).

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-60531

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM N. LOGAN, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Mississippi

March 4, 1998

Before POLITZ, Chief Judge, BENAVIDES and PARKER, Circuit Judges.

POLITZ, Chief Judge:

William N. Logan, Jr. was convicted of several drug offenses and, in

connection therewith, of violating 18 U.S.C. § 924(c)(1) which proscribes using or

carrying a f

irearm during and in relation to any drug trafficking offense. We

affirmed on appeal. 1 After the Supreme Court’s decision in B ailey v. United

Stat es

, 2 Logan moved to vacate the firearm conviction and sentence, invoking

28 U.S.C. § 2255. The district court denied the motion. Logan appeals. For the

reasons assigned, we affirm.3 949 F.2d at 1373.

4 United States v. Logan , 744 F.Supp. 735 (N.D.Miss. 1990).

5 18 U.S.C. § 924(c)(1).

2 Background

Logan and nine other defendants were charged in a 16-count indictment with

drug conspiracies and various related substantive violations. Logan was named in

12 counts, including count 16 in which he alone was charged with using or carrying

a firearm in violation of 18 U.S.C. § 924(c)(1). On direct appeal we summarized

the relevant facts thusly: 3

Following a high-speed chase, Logan was stopped and arrested as he

entered Mississippi from Alabama on February 17, 1989. At that time,

Logan denied his true identity. After seizing the vehicle for forfeiture

because it had been used to transport drugs from Texas and Florida to Mississippi, agents conducted an invento ry search of Logan’s

automobile. The agents seized slightly less than two ounces of

cocaine and a loaded .25 caliber semi-automatic pistol from Logan’s

jacket, which was on the backseat of the automobile.

Logan was convicted on all 12 counts and sentenced to 132 months

imprisonment, including 60 months on the gun charge. 4 Following the subsequent

Bailey decision, Logan sought the noted post-conviction relief.

Analysis

Section 924(c)(1) is violated when a defendant “during and in relation to any

crime of violence or drug trafficking crime

. . . uses or carries a firearm.” 5 Prior to

Bailey

, our precedent merely required “evidence that the firearm was available to

provide protection to the defendant” in connection with the drug crime to support6 United States v. Ivy

, 973 F.2d 1184, 1189 (5th Cir. 1992) (internal quotation marks and

citation omitted).

7 116 S.Ct. at 505.

8 Id. at 508.

9 United States v. Shaid , 937 F.2d 228 (5th Cir. 1991) (en banc).

3 a conviction of “use” unde r section 924(c)(1). 6 In B ailey

, the Supreme Court

defined “use,” limiting the reach of the statute by holding that the government must

produce evidence “sufficient to show an active employment of the firearm by the

defendant, a use that makes the firearm an operative f actor in relation to the

predicate offense.” 7 Although previously, under our precedents, a showing of mere

possess ion of a firearm was sufficient, the B ailey Court explicitly declared that

intended use or accessibility alone does not constitute “use” under section 924. 8

Logan contends that Bailey dictates that we vacate his firearm convi ction and

sentence because his jury instructions did not define or distinguish between carry

and us e and the general verdict did not reveal whether the jury found him guilty

under the carry or use prong of section 924(c)(1). He therefore maintains that the

jury could have found him guilty under the liberal pre- Bailey definition of use.

This error was not raised at Logan’s trial or on appeal and, in accordance

with the established rubric, Logan must meet the two-part cause and prejudice test. 9

Under that test, “[t]o obtain collateral relief based on trial errors to which no

co ntemporaneous objection was made,” Logan must show both “(1) ‘cause’

excusing his procedural default, and (2) ‘actual prejudice’ resulting from the errors10 United States v. Frady , 456 U.S. 152 (1982).

11 Id. at 165.

12 Reed v. Ross , 468 U.S. 1 (1984).

13 United States v. Guerra , 94 F.3d 989 (5th Cir. 1996).

4 of which he complains.” 10 This standard presents “a significantly higher hurdle

than would exist on direct appeal.” 11

Applying this test we find that Lo g an has shown adequate cause for his

failure to raise earlier the present issue because the Bailey decision had no t been

r endered at the time of his trial or appeal. “A petitioner seeking collateral relief

may be excused from failing to make an objection in the original proceeding if the

basis for the objection was not known until after the petitioner’s conviction became

final.” 12 Because the basis for Logan’s motion did not exist, as such, at the time of

his convic tion, we note sufficient cause for his failure to object to the jury

instructions and general verdict.

We conclude that Logan has suffered no prejudice, however, justifying the

relief he requests. To show actual prejudice Logan must demonstrate that, but for

the alleged error, he might not have been convicted. 13 He contends that his

sentence must be vacated because the jury could have convicted him under the use

p rong. Under B ailey ’s teachings it is evident that the record does not support a

conviction for use of a firearm herein. The gun was found in Logan’s jacket on the

backseat of the automobile. The active employment element, which B ailey

requires, is absent.1 4 United States v. Pineda-Ortuno

, 952 F.2d 98 (5th Cir. 1992); see also United States

v. Hall

, 110 F.3d 1155 (5th Cir. 1997); United States v. Muscarello

, 106 F.3d 636 (5th Cir.

1997).

15 82 F.3d 1315 (5th Cir. 1996).

5 The record, however, does support a conviction for carrying. Evidence that

a firearm has been transporte d in a vehicle, and that the operator of the vehicle

knowingly possessed the firearm during and in relation to a drug trafficking crime,

satisfies the carrying requirement of section 924(c)(1). 14 Logan transported a Titan

.25 caliber semi-automatic pistol in his jacket in his automobile. Additionally, the

jury was instructed that a finding of “knowing[] or intentional[]” use or carrying of

the firearm during or in relation to the predicate offense was necessary to convict

Logan on the firearm charge. Therefore the jury rationally could find the required

factual basis for the firearm conviction and the necessary correlation between the

carrying and the underlying drug offense.

Even though the record supports his conviction under the carrying prong of

section 924(c)(1), Logan maintains that his sentence mu st be vacated and remanded

for a new trial on the carrying theory only. He principally relies upon our decision

in United States v. Fike

. 15 In Fike

, we concluded that in placing a gun under the

driver’s seat of a car, then driving the car to another location, the defendant carried

the gun. We remanded the case, however, because the jury was given the

expansive pre- Bailey instruction which would have allowed for a conviction on the

basis of mere possession alone.

Remand is not required in this case. Unlike the typical pre- B ailey1 6 116 S.Ct. 501. (The word “use” in section 924 must be given its ordinary and natural

meaning.)

6 instructions, Logan’s jury was not told that possession was sufficient for a

conviction. To the contrary, the jury was told explicitly that mere possession of the

firearm was not enough but, instead, was instructed that some connection between

the drug crime and the carrying of the gun was necessary to convict Logan on the

firearm charge. Accordingly, these instructions do not suffer from the pre- B ailey

error. Although the jury instructions did not expressly define use or carry, the jury

was left to give these words their ordinary and natural meanings. This is consistent

with the dictates of Bailey

. 16 The instructions at issue were drafted tightly and the

j ury could not have based its decision on mere possession. Logan has failed to

demonstrate any actual prejudice these instructions could have caused other than

the fact that they were given prior to the Bailey decision.

The decision appealed is AFFIRMED.