### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk November 30, 1998

TO: ALL RECIPIENTS OF THE ORDER AND JUDGEMENT
RE: 97-4178, United States v. Moore Filed on November 25, 1998
The order and judgment filed on November 25, 1998, contains a typographical error. On page one, in the section listing the pan el of judges, the name of Judge Wade Brorby was misspelled as “Broby”. The correctspelling is “Brorby”. Please make the correction to your copy of the orde r and judgment. Sincerely, Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk*This order and judgment is not binding precedent, except under the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.

1 During the trial in this matter, the color of the E l Camino seen leaving the convenience store was described in a variety of way s. 

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

### NOV 25 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 97-4178

v. (D.C. No. 96-CR-24-S) LONNY LEE MOORE, (D. Utah) Defendant - Appellant.

ORDER AND JUDGMENT *

Before BRORBY , McKAY , and MURPHY , Circuit Judges.
Defendant and his co-defendant, Mr. Donny Jace Henn efer, were arrested in connection with the robbery of a convenience store in Ogden, Utah. Following the robbery, a blue or grey El Camino 1 was seen leaving the convenience store. The El Camino was located in a nearby snow bank sho rtly after it was seen departing the scene of the robbery. When a police officer arrived at the site of the2 By the time a police officer arrived at the El Cami no, Mr. Hennefer had

left the scene of the stuck vehicle on foot.

3 Although Defendant filed his notice of appeal afterthe expiration of the 10-day period provided for in Rule 4(b) of the Fede ral Rules of Appellate Procedure, the Government agrees that the delay was due to excusable neglect caused by the withdrawal of Defendant’s counsel. T hus, we have jurisdiction over this appeal and we do not address the timeline ss of Defendant’s notice of appeal. -2- El Camino, he discovered Defendant and another indi vidual attempting to extricate the vehicle from the snow. 2 Defendant was standing on the driver’s side of the vehicle, and the record indicates that he wa s the driver of the vehicle. After handcuffing Defendant and the other individua l, the officer observed a safe behind the driver’s seat. On top of the safe, a re volver was protruding out of a black nylon bag. The officer also discovered photo graphs of Defendant and Mr. Hennefer inside of the bag. Following a jury trial, Defendant was convicted of violating the Hobbs Act, 18 U.S.C. § 1951(a); using or carrying a firearm inrelation to a crime of violence in violation of 18 U.S.C. § 924(c); and possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). In this appeal, 3 Defendant challenges only his conviction under 28 U.S.C. § 924(c)(1), arguing that it was based on insufficient evidence and that the district court’s jury instruc tions improperly stated the governing law. Our review of challenges based on sufficiency of ev idence “is limited to4 We note that in the indictment Defendant was charge d with using and

carrying a firearm. However, both section 924(c) and the jury instructions define the crime in the disjunctive, i.e. “using or carryi ng.” “‘[A] crime denounced in the statute disjunctively may be alleged in an indi ctment in the conjunctive, and thereafter proven in the disjunctive.’” United States v. Simpson , 94 F.3d 1373, 1378 n.2 (10th Cir.) (quoting United States v. Parr ish , 925 F.2d 1293, 1297 (10th Cir. 1991)), cert. denied , __U.S.__, 117 S. Ct. 411 (1996). -3- inquiring whether the record contains substantial e vidence to support the jury’s verdict, viewing the evidence in the light most fav orable to the prevailing party.” Rainbow Travel Serv., Inc. v. Hilton Hotels Corp. , 896 F.2d 1233, 1239 (10th Cir. 1990). We agree with the Defendant that, under the standard set forth in United States v. Bailey , 516 U.S. 137 (1995), the evidence does not establ ish that he used a firearm. However, Defendant’s section 924(c) con viction is nonetheless valid because the record indicates that the Defendant carried a firearm in relation to a crime of violence. 4 The Supreme Court of the United States recently cla rified the standard applicable to the “carry” prong of section 924(c). In Muscarello v. United States , __ U.S. __, 118 U.S. 1911, 1913 (1998), the Court h eld that the phrase “‘carries a firearm’” is not limited to “the carrying of firear ms on the person.” Instead, the Court determined that the phrase also “applies to aperson who knowingly possesses and conveys firearms in a vehicle.” Id. The Court sustained the defendants’ convictions for carrying. Under this s tandard, the evidence in the record clearly supports Defendant’s conviction unde r the “carry” prong of section-4-

924(c). Defendant’s weapon was found in a nylon ba g behind the seat of the car in which he and Mr. Hennefer attempted to flee the scene of the robbery. In fact, the record indicates that Defendant’s gun was even more accessible than the guns in the companion cases examined in Muscarello . See id. at 1914, 1919 (stating that guns were located in locked glove compartment and trunk of cars). We conclude that the evidence was sufficient to show t hat Defendant carried a firearm in connection with a robbery. Defendant also contends that the jury instructions pertaining to section 924(c) were erroneous. We review jury instructions de novo “to determine whether, as a whole, [they] correctly stated the go verning law and provided the jury with an ample understanding of the issues and applicable standards.” Allen v. Minnstar, Inc. , 97 F.3d 1365, 1368 (10th Cir. 1996). According t o Defendant, Jury Instruction 42 did not clearly indicate that, to sustain a conviction for carrying, he must have had actual or constructive p ossession of the firearm. See United States v. Holland , 116 F.3d 1353, 1357 n.2 (10th Cir.) (noting that Bailey does not affect this circuit’s pre-Baileystandard for carrying), cert. denied , __ U.S. __, 118 S. Ct. 253 (1997); Simpson , 94 F.3d at 1379. We find this objection to be without merit. Jury I nstruction 42 meets the actual or constructive possession requirement becau se it clearly states that, to sustain a conviction for carrying, the Defendant mu st have known of “the-5-

weapon’s presence and had the power and intention t o exercise control of the weapon so that it was available for his use in the commission of the crime if the need arose.” R., Vol. IV, Doc. 195. Further, the jury instruction on the “carry” prong is consistent with the Supreme Court’s decisi on in Muscarello because it indicates that the possession must have been knowin g. See Muscarello , 118 S. Ct. at 1913. We conclude that the district court’s ins truction to the jury on the carry prong of section 924(c) was not erroneous. Defendant also seems to argue that Jury Instruction42 did not properly distinguish between the use prong and the carry pro ng of section 924(c). The record shows that, with respect to Defendant, the d istrict court instructed the jury only on the carry prong of section 924(c). With re spect to Mr. Hennefer, the district court provided instructions on both the carry prong and the use prong. Nonetheless, as we have already concluded, the juryinstructions concerning the carry prong were legally sufficient. In addition, the district court properly instructed the jury regarding the use prong with re spect to Mr. Hennefer. In accordance with the Baileystandard, the district court instructed the jury t hat “[i]n order to prove that the defendant used the fi rearm, the government must prove beyond a reasonable doubt an active employment of the firearm by the defendant during and in relation to the commission of a crime of violence.” R., Vol. IV, Doc. 195, Instr. 37; see Bailey , 516 U.S. at 143 (“use” requires-6-

government to proffer “evidence sufficient to show an active employmentof the firearm by the defendant”). We conclude that these instructions sufficiently distinguished the use prong from the carry prong. Finally, we note that Defendant has properly obje cted to a special assessment of $100.00 per count, instead of $50.00 per count, on his three convictions. The incident from which Defendant’s c onvictions stemmed occurred on February 4, 1996. The special assessment provis ion was amended on April 24, 1996, and therefore is not applicable to Defendant’ s convictions. See 18 U.S.C. § 3013; United States Sentencing Guidelines § 5E1.3 ( special assessment is $50.00 for felonies committed prior to April 24, 1996). D efendant should have been assessed a $50.00 per-count penalty on each of his three counts, for a total of $150.00. We AFFIRM Defendant’s conviction and sentence pursu ant to 18 U.S.C. § 924(c). We VACATE the special assessment portion o f the sentence and REMAND to the district court for re-sentencing in a ccordance with this opinion. AFFIRMED IN PART, VACATED AND REMANDED IN PART. Entered for the Court

Monroe G. McKay Circuit Judge