* This order and judgment is not binding precedent, e xcept under the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

### 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

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 traffickin g crime, 18 U.S.C. § 924(c)(1). He was sentenced to thirty months on the drug traff icking count and to the mandatory sixty months to be served consecutively o n the firearm count, see § 924(c)(1). His convictions and sentences were af firmed on direct appeal. See Gutierrez v. United States , No. 92-4044, 1992 WL 401588 (10th Cir. Dec. 22, 1992) (unpublished). In February 1996, Gutierrez f iled 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 Baileyand 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 reman d 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 p assenger owned the car. Prior to stopping the car, the officer had noticed some f urtive movements by the passenger sitting in the back seat of the car on th e driver’s side, where, it turned-3-

out, Gutierrez was sitting. After stopping the car , the officer and a backup who had just arrived ordered the four occupants to exitthe car. All occupants of the vehicle appeared to have fresh puncture wounds on their arms, indicative of recent intravenous injections of narcotics. Direct ly beneath where Gutierrez had been sitting, the officer found a gun wedged betwee n the seat back and bottom. The butt of the gun was visible sticking out from t he seat. Within a few inches of the gun, the officer found two large packages of co caine 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 ident ification, 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 occ upants of the car, including the driver. Subsequently, the police determined that t he gun was not registered to Gutierrez. The police did not take fingerprints fr om either the gun or the packages of drugs. Gutierrez was charged with and tried for possessionwith intent to distribute cocaine (Count 1) and using or carrying a firearm i n 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 defendan t used or carried a firearm.-4-

. . . . In order for the government to sustain its burden o f 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 sh owed the weapon during the alleged drug trafficking crime. It is s ufficient if the proof establishes that the firearms were a means of safeg uarding and facilitating the possession of the controlled subst ance 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 un dertaking and its availability increased the likelihood that the crim inal undertaking would succeed. R. Suppl. Vol. I, Instruction No. 32.

The second element the government must prove beyonda reasonable doubt is that the defendant had knowledg e 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 c arried 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 o f the United States.

. . . . The words “in relation to” mean that the firearm ha d a role in or facilitated, or had the potential of facilitatin g, 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, Gutie rrez did not challenge these1 Baileyapplies retroactively to cases on collateral revie w. See Holland , 116

F.3d at 1355-56. -5- 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 c laim 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 Baileythree years after Gutierrez was convicted. Under similar circumstances in Holl and , we concluded that the petitioner established cause for failing to raise t he claim earlier because Bailey overturned a longstanding and widespread practice t o 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 Gut ierrez has shown cause for failing to raise the claim earl ier 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 he ld that “§ 924(c)(1) requires evidence sufficient to show an active employmentof the firearm by the defendant,2 The district court concluded that there was no Bail eyproblem because it

mistakenly determined that the jury instructions di d not define “use.” We also note that we issued our decision in Hollandafter 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, wi thout its more active employment, is not sufficient to show use be cause storage “is not reasonably distinguishable from possession.” Id. at 508. Thus, while the instructions here may have satisfied our pre-Baileycases, it is clear, as the government concedes, that the instructions do not a dequately 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 B ailey ), 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 he re 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 f or relief.” Holland , 116 F.3d at 1358; see also United States v. Miller , 84 F.3d 1244, 1257 (10th Cir.) cert.-7-

denied , 117 S. Ct. 443 (1996), overruled in part on othergrounds , Holland , 116 F.3d 1353 (1997). We must therefore examine the co nviction 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 finding s required” to support the conviction under the “carry” prong. Id. Thus, to ensure a defendant is not convicted for noncriminal conduct, the essential in quiry 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, whethe r the verdict was the functional equivalent of such a finding. We mu st be convinced that it was impossible upon the evidence and instru ctions 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, w e conclude that the jury did not make all the findings required to sustain t he conviction under the “carry” prong. In the first place, the instructions blurre d 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 o f “carry.” Thus, under the issued instruction, the jury could have concluded t hat “use” and “carry” were synonymous. See Simpson , 94 F.3d at 1379 (where instruction did not separately3 The jury was correctly instructed on, and necessari ly did find, the “during

and in relation to” element. -8- define “carry,” "the jury could have erroneously de cided 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” v iolation. “A conviction under the ‘carry’ prong of section 924(c)(1) requires pos session 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 transportati on/movement elements. 3 Finally and most critically, there are no jury find ings from which we may determine that it necessarily found the required “c arry” 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 fin dings of either possession or transportation/movement. Moreover, Gutierrez has n ever admitted any of the elements of a “carry” violation.4 As noted earlier, there is no evidence that Gutierr ez actively employed the

gun to support a conviction under the use prong. -9- We therefore conclude that we cannot affirm Gutierr ez’s § 924(c)(1) conviction under the “carry” prong. Because he cou ld have been convicted for conduct the law does not make criminal, he has esta blished the requisite prejudice both to raise the Baileyclaim on collateral review and to entitle him to r elief. 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 ben eath where Gutierrez had been sitting and was located within inches of the p ackage of cocaine. Gutierrez was charged with and convicted of possession of the cocaine with intent to distribute, and the jury was properly instructed th at it had to find that he possessed the cocaine. On his direct appeal, he ch allenged 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 s ufficient 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