* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 13 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESSE GUTIERREZ,

Defendant-Appellant.

No. 96-4197

(D.C. No. 96-CV-147)

(D. Utah)

ORDER AND JUDGMENT*

Before PORFILIO, KELLY, and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
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Jesse Gutierrez was convicted after a jury trial in 1992 of possession with

intent to distribute cocaine, 21 U.S.C. § 841(a)(1) & (b)(1)(C), and using and

carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). 

He was sentenced to thirty months on the drug trafficking count and to the

mandatory sixty months to be served consecutively on the firearm count, see

§ 924(c)(1). His convictions and sentences were affirmed on direct appeal. See

Gutierrez v. United States, No. 92-4044, 1992 WL 401588 (10th Cir. Dec. 22,

1992) (unpublished). In February 1996, Gutierrez filed a motion pursuant to 28

U.S.C. § 2255 to vacate his conviction and sentence on the firearm count. He

contends that Bailey v. United States, 116 S. Ct. 501 (1995), invalidated his

conviction under the use prong of § 924(c)(1) and that there was not sufficient

evidence to convict him under the carry prong. The district court denied the

motion, and Gutierrez appeals. We conclude that in light of Bailey and United

States v. Holland, 116 F.3d 1353 (10th Cir.), cert. denied, 118 S. Ct. 253 (1997),

we must vacate his § 924(c)(1) conviction and remand for a new trial.

I.

On August 7, 1991, a Salt Lake City police officer stopped a car in which

Gutierrez was a passenger. The father of another passenger owned the car. Prior

to stopping the car, the officer had noticed some furtive movements by the

passenger sitting in the back seat of the car on the driver’s side, where, it turned
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out, Gutierrez was sitting. After stopping the car, the officer and a backup who

had just arrived ordered the four occupants to exit the car. All occupants of the

vehicle appeared to have fresh puncture wounds on their arms, indicative of

recent intravenous injections of narcotics. Directly beneath where Gutierrez had

been sitting, the officer found a gun wedged between the seat back and bottom. 

The butt of the gun was visible sticking out from the seat. Within a few inches of

the gun, the officer found two large packages of cocaine and heroin. The officer

also found a fanny pack lying on the floor directly in front of where Gutierrez had

been sitting. The pack contained Gutierrez’s identification, a key to a nearby

motel room, a small package of heroin, and about $1,050 in cash. The police

arrested Gutierrez and released the other three occupants of the car, including the

driver. Subsequently, the police determined that the gun was not registered to

Gutierrez. The police did not take fingerprints from either the gun or the

packages of drugs. 

Gutierrez was charged with and tried for possession with intent to distribute

cocaine (Count 1) and using or carrying a firearm in violation of § 924(c)(1)

(Count 2). With respect to the § 924(c)(1) charge, the jury was instructed that the

government had to prove three elements.

The first element the government must prove beyond a

reasonable doubt as to Count 2 is that the defendant used or carried a

firearm.
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. . . .

In order for the government to sustain its burden of proof that

the defendant used or carried a firearm, it is not necessary for it to

show that the defendant fired the weapon or even showed the weapon

during the alleged drug trafficking crime. It is sufficient if the proof

establishes that the firearms were a means of safeguarding and

facilitating the possession of the controlled substance with the intent

to distribute it. 

A firearm is used when a defendant has ready access to it and

the firearm was an integral part of his criminal undertaking and its

availability increased the likelihood that the criminal undertaking

would succeed.

R. Suppl. Vol. I, Instruction No. 32. 

The second element the government must prove beyond a

reasonable doubt is that the defendant had knowledge that what he

was carrying or using [was] a firearm as that term is generally

used. . . .

Id., Instruction No. 33.

The third element the government must prove beyond a

reasonable doubt is that the defendant unlawfully carried or used the

firearm during and in relation to the commission of a drug trafficking

crime for which he might be prosecuted in a court of the United

States.

. . . .

The words “in relation to” mean that the firearm had a role in

or facilitated, or had the potential of facilitating, a drug trafficking

crime.

Id., Instruction No. 34. Based on these instructions, the jury convicted Gutierrez

of the § 924(c)(1) charge. On direct appeal, Gutierrez did not challenge these
1 Bailey applies retroactively to cases on collateral review. See Holland, 116

F.3d at 1355-56.

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instructions. The only issue he raised concerning his § 924(c)(1) conviction was

whether there was sufficient evidence to support it. This court held that there

was.

II.

Because Gutierrez did not raise a Bailey-type argument either at trial or on

direct review, he has procedurally defaulted this claim from collateral review

unless he can show cause for his default and actual prejudice resulting from the

error he asserts.1

 The Supreme Court issued Bailey three years after Gutierrez

was convicted. Under similar circumstances in Holland, we concluded that the

petitioner established cause for failing to raise the claim earlier because Bailey

overturned a longstanding and widespread practice to which the Court had not

spoken, but which a nearly unanimous body of lower courts had expressly

approved. See Holland, 116 F.3d at 1356. We therefore conclude that Gutierrez

has shown cause for failing to raise the claim earlier and turn to his burden of

proving prejudice. 

In Bailey, the Supreme Court rejected the broad definitions of “use” that

this and other circuit courts had been using and held that “§ 924(c)(1) requires

evidence sufficient to show an active employment of the firearm by the defendant,
2 The district court concluded that there was no Bailey problem because it

mistakenly determined that the jury instructions did not define “use.” We also

note that we issued our decision in Holland after the district court denied

Gutierrez’s § 2255 motion. 

-6-

a use that makes the firearm an operative factor in relation to the predicate

offense.” Bailey, 116 S. Ct. at 505. Mere storage of a firearm, without its more

active employment, is not sufficient to show use because storage “is not

reasonably distinguishable from possession.” Id. at 508. Thus, while the

instructions here may have satisfied our pre-Bailey cases, it is clear, as the

government concedes, that the instructions do not adequately define “use” under

Bailey.

2

 See, e.g., United States v. Simpson, 94 F.3d 1373, 1378-79 (10th Cir.)

(holding similar “use” instruction improper under Bailey), cert. denied, 117 S. Ct.

411 (1996); United States v. Spring, 80 F.3d 1450, 1464 (10th Cir.) (same), cert.

denied, 117 S. Ct. 385 (1996). Moreover, the evidence here would not support a

conviction under a properly instructed use prong of § 924(c)(1) because there was

no evidence that Gutierrez “actively employed” the firearm.

Gutierrez was charged in the alternative with both using and carrying a

firearm. If the only basis for his conviction was the invalid “use” prong, “he

would have been convicted for conduct the law does not make criminal and

therefore would establish the requisite prejudice for relief.” Holland, 116 F.3d at

1358; see also United States v. Miller, 84 F.3d 1244, 1257 (10th Cir.) cert.
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denied, 117 S. Ct. 443 (1996), overruled in part on other grounds, Holland, 116

F.3d 1353 (1997). We must therefore examine the conviction under the “carry”

prong, but we must do more than determine whether there is sufficient evidence to

support a “carry” conviction. See Holland, 116 F.3d at 1358. We must also be

assured that “the jury necessarily made the findings required” to support the

conviction under the “carry” prong. Id. Thus, to ensure a defendant is not

convicted for noncriminal conduct, the essential inquiry becomes

whether the jury’s verdict, under the instructions given and the nature

of the evidence, required the jury to find all the elements of a

“carrying” violation, or stated another way, whether the verdict was

the functional equivalent of such a finding. We must be convinced

that it was impossible upon the evidence and instructions for the jury

to have returned a “use” conviction without finding all the elements

of a “carrying” violation as well. 

Holland, 116 F.3d at 1359 n.4. 

Based on the instructions given and the evidence, we conclude that the jury

did not make all the findings required to sustain the conviction under the “carry”

prong. In the first place, the instructions blurred any distinction between use and

carry. Instruction No. 32 initially told the jury in general terms what the

government needed to show to prove Gutierrez “used or carried” a firearm, and

then defined “use” without any further discussion of “carry.” Thus, under the

issued instruction, the jury could have concluded that “use” and “carry” were

synonymous. See Simpson, 94 F.3d at 1379 (where instruction did not separately
3 The jury was correctly instructed on, and necessarily did find, the “during

and in relation to” element.

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define “carry,” "the jury could have erroneously decided that the terms ‘use’ and

‘carry’ were redundant”).

Additionally, unlike the situation in Holland, the jury was not fully

instructed on the necessary elements of a “carry” violation. “A conviction under

the ‘carry’ prong of section 924(c)(1) requires possession of the firearm through

dominion and control, and transportation or movement of the weapon,” as well as

proof that the firearm was carried “‘during and in relation to’ a drug trafficking

offense.” United States v. Richardson, 86 F.3d 1537, 1548 (10th Cir.) (quoting

§ 924(c)(1)), cert. denied, 117 S. Ct. 588 (1996). Here, the jury was not

instructed on either the possession or transportation/movement elements.3

Finally and most critically, there are no jury findings from which we may

determine that it necessarily found the required “carry” elements despite the lack

of instructions. To find Gutierrez guilty of the § 924(c)(1) violation as instructed,

the jury had only to find that he had “ready access” to the gun. A finding of

“ready access” does not necessarily incorporate findings of either possession or

transportation/movement. Moreover, Gutierrez has never admitted any of the

elements of a “carry” violation. 
4 As noted earlier, there is no evidence that Gutierrez actively employed the

gun to support a conviction under the use prong.

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We therefore conclude that we cannot affirm Gutierrez’s § 924(c)(1)

conviction under the “carry” prong. Because he could have been convicted for

conduct the law does not make criminal, he has established the requisite prejudice

both to raise the Bailey claim on collateral review and to entitle him to relief. We

therefore must vacate his conviction and sentence. The question then becomes

whether to order a new trial. That requires us to determine whether there is

sufficient evidence in the record that could support a finding under proper

instructions that Gutierrez carried a firearm. See Miller, 84 F.3d at 1258 (“[W]e

will remand for a new trial only if the jury could have returned a jury verdict if

properly instructed.”).4 We conclude that there is.

The gun was stuffed in the back seat of the car beneath where Gutierrez had

been sitting and was located within inches of the package of cocaine. Gutierrez

was charged with and convicted of possession of the cocaine with intent to

distribute, and the jury was properly instructed that it had to find that he

possessed the cocaine. On his direct appeal, he challenged the sufficiency of the

evidence supporting the conviction on this charge. In rejecting this contention,

we held that “[t]he jury could reasonably conclude that the drugs were initially on

Gutierrez and that he distributed drugs to the occupants, and tried to hide them
-10-

during the stop.” Gutierrez, 1992 WL 401588, at **3. By the same token, a jury

could reasonably find that Gutierrez had the gun on him, in a moving vehicle, and

tried to hide it during the stop. Thus, there is sufficient evidence to support the

possession and transportation/movement elements of a “carry” violation.

III.

For the reasons explained above, Gutierrez’s § 924(c)(1) conviction and

sentence are VACATED, and the case is REMANDED for a new trial on that

offense.

Entered for the Court

Robert H. Henry

Circuit Judge