PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5670

ERVIS LAMONT HASTINGS,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5756

MITCHELL IVAN BOLDER,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5841

VIVIAN MAE RENFRO,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5078

JAMES MICHAEL PHILLIPS,

Defendant-Appellant.
Appeals from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert D. Potter, Senior District Judge.

(CR-94-29-P)

Argued: October 2, 1997

Decided: January 14, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and

HERLONG, United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed in part and dismissed in part by published opinion. Judge

Wilkins wrote the opinion, in which Judge Murnaghan and Judge

Herlong joined.

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COUNSEL

ARGUED: John Stuart Bruce, Deputy Federal Public Defender,

Greensboro, North Carolina, for Appellant Phillips; Theofanis Xenophon Nixon, GOODMAN, CARR, NIXON, LAUGHRUN &

LEVINE, Charlotte, North Carolina, for Appellant Bolder; Edward

Anthony Fiorella, Jr., HARKEY, LAMBETH, NYSTROM & FIORELLA, Charlotte, North Carolina, for Appellant Hastings; Rodney

Shelton Toth, Charlotte, North Carolina, for Appellant Renfro. Robert

James Conrad, Jr., Assistant United States Attorney, Charlotte, North

Carolina, for Appellee. ON BRIEF: Mark T. Calloway, United States

Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

 2
OPINION

WILKINS, Circuit Judge:

James Michael Phillips appeals his convictions and sentence for

using or carrying a firearm during and in relation to a drug trafficking

offense, see 18 U.S.C.A. § 924(c)(1) (West Supp. 1997); conspiracy

to possess with the intent to distribute cocaine and cocaine base, see

21 U.S.C.A. § 846 (West Supp. 1997); and possession with the intent

to distribute cocaine and cocaine base, see 21 U.S.C.A. § 841(a)(1)

(West 1981).1 We address at length only Phillips' assertion that his

conviction for using or carrying a firearm during and in relation to a

drug trafficking offense must be reversed in light of the subsequent

decision of the Supreme Court in Bailey v. United States, 116 S. Ct.

501 (1995). Because we conclude that Phillips cannot meet the strictures of plain-error review of his claim that the district court erroneously instructed the jury regarding the meaning of the term "use"

under § 924(c)(1), and because his remaining challenges lack merit,

we affirm.

I.

From 1992 until his arrest in February 1994, Phillips participated

in a large-scale drug distribution ring in Charlotte, North Carolina.

Phillips received quantities of cocaine base from the leader of the

operation, repackaged the drugs into single-dosage units, and sold

them with the assistance of Jerald Westberry and others.

In late January 1994, undercover government agents arranged to

purchase a quantity of cocaine base from Phillips. On February 2, the

date of the proposed sale, Phillips traveled to a designated location

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1 Phillips' coconspirators--Ervis Lamont Hastings, Mitchell Ivan

Bolder, and Vivian Mae Renfro--appeal the sentences imposed pursuant

to their pleas of guilty to various charges. We conclude that the challenges raised by Hastings and Bolder are without merit and accordingly

affirm as to them. Because Renfro failed to file a timely notice of appeal

and we cannot conclude that the district court abused its discretion in

determining that Renfro failed to show excusable neglect, see Fed. R.

App. P. 4(b), we dismiss her appeal.

 3
with Leigh Tucker and Westberry; Tucker drove her automobile, Phillips rode in the front passenger seat, and Westberry sat in the back.

Before departing, Phillips retrieved a pistol from an upstairs closet in

his apartment and loaded the weapon with ammunition stored in the

kitchen. He then placed the firearm in an interior pocket of his coat

and walked to Tucker's vehicle, where he stored the pistol in the console to his left, within easy reach.

Phillips, Tucker, and Westberry met the "buyers" in a grocery store

parking lot. The parties agreed to consummate the sale at another

location and proceeded toward that destination. Before they arrived,

however, law enforcement officers signaled Tucker to stop. As she

did so, Phillips removed the firearm from the console and handed it

to Westberry, who unsuccessfully attempted to conceal it. All of the

occupants of the vehicle were arrested. Phillips' subsequent conviction for using or carrying a firearm during and in relation to a drug

trafficking offense was based upon this incident.

II.

Phillips argues that his conviction for using or carrying a firearm

during and in relation to a drug trafficking offense, see 18 U.S.C.A.

§ 924(c)(1), must be reversed because the evidence is insufficient to

support it and because the district court erroneously instructed the

jury regarding the meaning of the term "use" under the statute. Phillips bases these contentions on the decision of the Supreme Court in

Bailey v. United States, 116 S. Ct. 501 (1995). In Bailey, the Court

held that in order to obtain a conviction under§ 924(c)(1) for using

a firearm during and in relation to a drug trafficking offense, the Government must establish that the defendant actively employed the

weapon by, e.g., "brandishing, displaying, bartering, striking with,

[or] ... firing or attempting to fire" it. Id. at 508. Although we agree

with Phillips that the evidence, when considered in light of Bailey, is

insufficient to support a conviction for using a firearm and that the

district court gave an erroneous instruction regarding the meaning of

"use," we nevertheless conclude that affirmance of the conviction is

appropriate.

 4
A.

Phillips first maintains that the evidence is insufficient to support

a finding that he "used" a firearm within the meaning of § 924(c)(1).2

In considering this argument, we must determine whether there is

substantial evidence, viewed in the light most favorable to the Government, to support the verdict. See Glasser v. United States, 315 U.S.

60, 80 (1942).

Here, the evidence establishes that Phillips, in preparation for a

drug transaction, retrieved a firearm from a closet, loaded it, carried

it to Tucker's vehicle, and stored it within easy reach where it

remained throughout the meeting with the purported purchasers. The

Government concedes that this evidence is insufficient to support a

conviction for using a firearm in the post-Bailey sense of that term.

And, although we are not bound by the Government's concession, see

Sibron v. New York, 392 U.S. 40, 58 (1968), we agree that the evidence presented does not allow a rational jury to conclude that Phillips actively employed the weapon during and in relation to a drug

trafficking offense. Nevertheless, we reject Phillips' sufficiency challenge because the evidence, although inadequate to support a conviction for using a firearm, is more than sufficient to warrant a

conviction on the basis that Phillips carried a firearm. See United

States v. Mitchell, 104 F.3d 649, 652-54 (4th Cir. 1997) (holding evidence that defendant "knowingly possessed and transported [a] firearm in his automobile" adequate to support a finding that defendant

"carried" the firearm for purposes of § 924(c)(1)); see also Griffin v.

United States, 502 U.S. 46, 56-60 (1991) (explaining that when a case

is submitted to a jury on two theories and the jury returns a general

verdict of guilty, affirmance is appropriate so long as the evidence is

sufficient to support a conviction on either theory).

B.

Phillips next argues that his conviction is invalid because the district court improperly instructed the jury regarding the meaning of the

_________________________________________________________________

2 Phillips does not challenge the adequacy of the evidence supporting

a finding that the firearm was used or carried "during and in relation to

... [a] drug trafficking crime." 18 U.S.C.A. § 924(c)(1).

 5
term "use" as that term is employed in § 924(c)(1). At the close of

trial, the district court instructed the jury that it must convict Phillips

of the § 924(c)(1) charge if it found that he had "used or carried the

firearm." J.A. 549. The district court then elaborated on the meaning

of the term "use":

A firearm can be used in relation to a felony involving drug

trafficking if the person possessing it intended to use the gun

as a contingency arose, for example, to protect himself or

make escape possible. It is not necessary that the firearm

actually be used, displayed or in the defendant's actual possession. It is sufficient if the possessor of the firearm

intended to have it available for use during the commission

of a drug crime.

 You may also find that the defendant used a firearm in

violation of 924(c)(1) if you find that the firearm was an

integral part in a criminal undertaking and its availability

increased the likelihood that the criminal undertaking would

succeed, even though the defendant did not brandish, display or discharge the firearm.

Id. at 549-50. The district court did not instruct the jury regarding the

meaning of the term "carry." Phillips maintains that the instruction

given by the district court regarding the definition of "use" was erroneous in light of Bailey and that the error mandates reversal of his

conviction.

Because Phillips failed to object to the instruction given by the district court, our review is for plain error. See Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993). In order to

establish our authority to notice an error not preserved by a timely

objection, Phillips must show that an error occurred, that the error

was plain, and that the error affected his substantial rights. See Olano,

507 U.S. at 732; United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.

1996). Even if Phillips can satisfy these requirements, correction of

the error remains within our sound discretion, which we "should not

exercise ... unless the error `seriously affect[s] the fairness, integrity

or public reputation of judicial proceedings.'" Olano, 507 U.S. at 732

(second alteration in original) (quoting United States v. Young, 470

 6
U.S. 1, 15 (1985)); see United States v. David , 83 F.3d 638, 641 (4th

Cir. 1996).

1.

In reviewing for plain error, our initial inquiry is whether an error

occurred. The Bailey Court held that in order to obtain a conviction

under § 924(c)(1) for "using" a firearm during and in relation to a

drug trafficking crime, the Government must establish that the defendant actively employed the weapon. See Bailey , 116 S. Ct. at 505-06.

In reaching this holding, the Court explicitly rejected the notion that

the "use" requirement is satisfied by a showing of mere "possession

with a floating intent to use" a weapon. Id. at 506 (internal quotation

marks omitted). Here, the district court instructed the jury that it could

find that Phillips "used" a firearm in violation of the statute even in

the absence of any evidence that he "actually ... used" it. J.A. 550. In

light of Bailey, this instruction was erroneous.

2.

Next, the error must be plain. At the time of Phillips' trial, the

instruction given by the district court was consistent with the law of

this circuit. See, e.g., United States v. Paz, 927 F.2d 176, 179 (4th Cir.

1991) (explaining that a "weapon need not be brandished or displayed" in order to satisfy the "use" requirement; "[r]ather, it is

enough if the firearm is present for protection and to facilitate the

likelihood of success" (internal quotation marks omitted)). During the

pendency of this appeal, however, the Supreme Court issued its decision in Bailey, clearly articulating a standard for establishing "use"

contrary to that previously employed by this circuit. As the Court

recently has explained, an error is plain at least when "the law at the

time of trial was settled and clearly contrary to the law at the time of

appeal." Johnson v. United States, 117 S. Ct. 1544, 1549 (1997); see

David, 83 F.3d at 645 (holding that an error is plain when "an objection at trial would have been indefensible because of existing law, but

a supervening decision prior to appeal reverses that well-settled law").

The error, therefore, was plain.

3.

Third, Phillips must establish that the error affected his substantial

rights, i.e., that it was prejudicial. See Olano, 507 U.S. at 734. As the

 7
Supreme Court noted in Olano, this prejudice inquiry differs from the

review for harmlessness required when an error is preserved by timely

objection in the district court in that, on plain-error review, "[i]t is the

defendant rather than the Government who bears the burden of persuasion." Id. This difference, moreover, is not an insignificant one.

On harmless-error review, a defendant is entitled to reversal of his

conviction unless the Government can establish that"the error `does

not affect substantial rights.'" Id. at 735 (quoting Fed. R. Crim. P.

52(a)). In contrast, on plain-error review, a defendant is entitled to

reversal only upon a showing that "the error does `affec[t] substantial

rights,'" that is, that the error actually affected the outcome of the proceedings. Id. (alteration in original) (quoting Fed. R. Crim. P. 52(b));

see United States v. Turcks, 41 F.3d. 893, 898 (3d Cir. 1994) (explaining that defendant's burden on plain-error review"is to show that the

outcome of [the] trial was actually affected" by the error); United

States v. Miro, 29 F.3d 194, 200 (5th Cir. 1994) (noting that in order

to establish that an error affected substantial rights, the defendant

ordinarily must "make a specific showing of actual prejudice"); see

also United States v. McKinney, 954 F.2d 471, 475-76 (7th Cir. 1992)

(describing plain error as "an error so grievous that it caused an actual

miscarriage of justice, which implies that the defendant probably

would not have been convicted absent the error"). But see United

States v. Saro, 24 F.3d 283, 287 (D.C. Cir. 1994) (concluding that the

proper standard for prejudice on plain-error review requires a showing that the error "might likely have substantially affected the outcome of the trial" (internal quotation marks omitted)). Simply stated,

"harmless error and plain error are not the same, and the fact that an

error is not harmless does not necessarily mean it" affected the defendant's substantial rights. McKinney, 954 F.2d at 475.

Before assessing whether Phillips can carry his burden of establishing that his substantial rights were affected by the erroneous instruction, we first pause to clarify that such an inquiry, in fact, is

appropriate here. As the Olano Court noted,"[t]here may be a special

category of forfeited errors that can be corrected regardless of their

effect on the outcome" of the proceedings. Olano, 507 U.S. at 735.

Under the law of this circuit, an error that cannot be reviewed for

harmlessness, including a "failure to instruct on an element of the

crime, where the jury never made the constitutionally required findings," automatically satisfies the third prong of the plain-error analy-

 8
sis without a specific showing of prejudice by the defendant. David,

83 F.3d at 647; cf. United States v. Aramony, 88 F.3d 1369, 1387 (4th

Cir. 1996) (concluding that a failure to instruct the jury on an element

of the offense is harmless when "the jury actually made an equivalent

or identical finding pursuant to another instruction"), cert. denied, 117

S. Ct. 1842 (1997). Here, however, the error is not one of noninstruction, but of misinstruction: The district court did not deprive the jury

of the opportunity to make a finding of fact regarding an essential element of the offense; instead, it allowed the jury to make the requisite

finding under an incorrect standard. See Johnson , 117 S. Ct. at 1549-

50 (recognizing this distinction between misinstruction and noninstruction on an element of an offense). And, as the Supreme Court

recently stated in Johnson, "improperly instructing the jury on an element of the offense[ is] an error which is subject to harmless-error

analysis." Id. at 1550 (citations omitted). In view of this clear statement, there can be no doubt that a misinstruction does not fall into the

narrow category of errors that automatically satisfy the third prong of

the plain-error analysis, irrespective of the defendant's ability to

establish prejudice. Accordingly, we must determine whether Phillips

can show that the erroneous instruction by the district court affected

his substantial rights.

In considering whether Phillips can satisfy the third prong of the

plain-error analysis, it is helpful first to review the standard for determining when an error of misinstruction that has been preserved for

review by means of a timely objection may be considered harmless.

A proper understanding of the burden borne by the Government on

harmless-error review serves to clarify the nature of Phillips' burden

on plain-error review.

When a defendant timely objects to the giving of an erroneous

instruction, the conviction may be affirmed only if the court is satisfied, beyond a reasonable doubt, that the error was harmless. See

Chapman v. California, 386 U.S. 18, 24 (1967). 3 In applying this

standard, a reviewing court should "consider ... not what effect the

_________________________________________________________________

3 We assume, for purposes of this appeal, that the giving of an erroneous instruction on an element of an offense is a constitutional error. See

United States v. Doherty, 867 F.2d 47, 58 (1st Cir. 1989); see also Pope

v. Illinois, 481 U.S. 497, 502-04 (1987).

 9
constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in

the case at hand" by looking "to the basis on which `the jury actually

rested its verdict.'" Sullivan v. Louisiana, 508 U.S. 275, 279 (1993)

(quoting Yates v. Evatt, 500 U.S. 391, 404 (1991)).

When, over a proper objection, a district court erroneously instructs

the jury on an element of the offense, the error may be disregarded

as harmless if a reviewing court can determine, beyond a reasonable

doubt, that a correctly instructed jury would have reached the same

conclusion. See Pope v. Illinois, 481 U.S. 497, 502-03 (1987); United

States v. Hairston, 46 F.3d 361, 373 (4th Cir. 1995). A court should

make this determination by first ascertaining what evidence the jury

necessarily credited in order to convict under the erroneous instruction and then considering whether that evidence--or facts so inextricably intertwined with the credited evidence that acceptance of the

evidence is the functional equivalent of finding those facts--

establishes an offense under a proper instruction. See Pope, 481 U.S.

at 503; United States v. Edmonds, 80 F.3d 810, 825 (3d Cir.) (en

banc) (affirming conviction despite misinstruction on an element of

the offense when facts establishing that element were so inextricably

intertwined with the evidence necessarily accepted by the jury in

order to convict that acceptance of that evidence was the functional

equivalent of finding those facts),4 cert. denied, 117 S. Ct. 295

_________________________________________________________________

4 In Edmonds, the defendant argued that the district court had erroneously instructed the jury that it need not agree unanimously on which of

eight offenses comprised the three related predicate offenses necessary

to convict the defendant of operating a continuing criminal enterprise.

See Edmonds, 80 F.3d at 812. The Third Circuit concluded that the error

was harmless beyond a reasonable doubt because "the evidence that the

jury must have credited to find Edmonds guilty of the predicate violations unequivocally established that all charged violations were related."

Id. at 812-13. In reaching this holding, the court explained that a conviction obtained pursuant to an erroneous instruction"may be salvageable.

Specifically, if other facts found by the jury are`so closely related' to the

fact tainted by erroneous instructions `that no rational jury could find

those facts without also finding [the former] fact, making those findings

is functionally equivalent to finding' the lacking element." Id. at 824

(second alteration in original) (quoting Carella v. California, 491 U.S.

 10
(1996); United States v. Maloney, 71 F.3d 645, 658 (7th Cir. 1995),

cert. denied, 117 S. Ct. 295 (1996); United States v. Doherty, 867

F.2d 47, 58-59 (1st Cir. 1989); see also Carella v. California, 491

U.S. 263, 271 (1989) (Scalia, J., concurring in judgment) (explaining

that an erroneous presumption may be harmless if"the predicate facts

relied upon in the instruction, or other facts necessarily found by the

jury, are so closely related to the ultimate fact to be presumed that no

rational jury could find those facts without also finding that ultimate

fact" because under such circumstances "making those findings is

functionally equivalent to finding the element required to be presumed"); Sullivan, 508 U.S. at 281 (quoting, with approval, Justice

Scalia's concurring opinion in Carella); cf. Yates v. Evatt, 500 U.S.

391, 404-05 (1991) (holding that application of harmless-error analysis to erroneous presumption depends upon a determination of what

evidence the jury actually considered in reaching its verdict and a

consideration of whether, in light of that evidence, it is possible to say

beyond a reasonable doubt that the jury's verdict was not affected by

the presumption); United States v. Holmes, 93 F.3d 289, 293-94 (7th

Cir. 1996) (in ascertaining whether erroneous pre-Bailey instruction

defining the phrase "uses or carries a firearm" affected the defendant's substantial rights, court looked to the evidence presented and

concluded that the error affected substantial rights because the jury

did not necessarily credit evidence establishing that the defendant carried firearms or used them in the post-Bailey sense).5

_________________________________________________________________

263, 271 (1989) (Scalia, J., concurring in judgment)). That standard was

satisfied, the court determined, because the evidence necessarily

accepted by the jury in order to convict the defendant of the predicate

offenses was so inextricably intertwined with evidence establishing the

relatedness of the predicate offenses that acceptance by the jury of the

evidence necessary to convict was the functional equivalent of finding

that each of the predicate offenses was related to the others. See id. at

825-27.

5 We note a seeming inconsistency in our prior decisions in United

States v. Hawthorne, 94 F.3d 118, 121 (4th Cir. 1996), and United States

v. Smith, 94 F.3d 122, 124 (4th Cir. 1996), the language of which appears

to suggest that the standard for harmless-error review of an erroneous

instruction is other than that set forth in Pope . To the extent this is so,

these decisions are undermined by Johnson, which clearly and unequivocally instructs that erroneous instructions may be reviewed for harmlessness under the standard set forth in Pope. See Johnson, 117 S. Ct. at

1550; Wilson, No. 95-5581, slip op. at 24.

 11
Application of the harmless-error analysis for erroneous instructions is also possible when the trial court submits a case to the jury

on two or more alternate theories, one of which is the subject of an

erroneous instruction. Under such circumstances, the determination of

whether the error was harmless is guided by Yates v. United States,

354 U.S. 298, 311-12 (1957). See United States v. Hudgins, 120 F.3d

483, 486-87 (4th Cir. 1997). Under Yates, reversal is required when

a case is submitted to a jury on two or more alternate theories, one

of which is legally (as opposed to factually) inadequate, the jury

returns a general verdict, and it is impossible to discern the basis on

which the jury actually rested its verdict. See Yates, 354 U.S. at 311-

12; see also Griffin v. United States, 502 U.S. 46, 52 (1991). This rule

is appropriate because when it cannot be determined that the conviction did not rest entirely on a legally inadequate ground, it is impossible to say that the error in submitting the legally inadequate ground

to the jury was harmless beyond a reasonable doubt.

The analysis required to decide whether it is possible to discern the

basis on which a jury rested its verdict under Yates is essentially an

adaptation of the inquiry conducted under Pope to determine whether

an instructional error is harmless. A reviewing court must attempt to

ascertain what evidence the jury necessarily credited in order to convict the defendant under the instructions given. If that evidence is

such that the jury must have convicted the defendant on the legally

adequate ground in addition to or instead of the legally inadequate

ground, the conviction may be affirmed. See Hudgins, 120 F.3d at

487-88 (affirming § 924(c)(1) conviction because the evidence necessarily credited by the jury in order to convict under the erroneous

"use" instruction established that the defendant had "carried" a firearm); United States v. Washington, 106 F.3d 983, 1013 (D.C. Cir.)

(same), cert. denied, 118 S. Ct. 446 (1997); United States v. Feinberg,

89 F.3d 333, 340 (7th Cir. 1996) (same), cert. denied, 117 S. Ct. 997

(1997); United States v. Boots, 80 F.3d 580, 589 (1st Cir.) (reversing

conviction under Yates because the evidence supporting conviction on

a valid ground was "not so intricately intertwined with the invalid ...

count that we can necessarily say that the ... conviction had a legally

correct basis"), cert. denied, 117 S. Ct. 263 (1996).6

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6 Although we are not presented with this question, it appears to us that

a conviction also may be affirmed under this rationale if the evidence

 12
If Phillips had lodged a timely objection to the instruction given by

the district court regarding "use" of a firearm, the Yates analysis

would be applicable here.7 The district court instructed the jury that

it could convict Phillips of the § 924(c)(1) charge if it found that he

had either used or carried a firearm during and in relation to a drug

trafficking offense. In conjunction with that charge, the district court

provided an erroneous definition of the term "use." But, no such erroneous instruction was given regarding the meaning of the term

"carry." The district court thus provided the jury with alternative

bases for a conviction, one of which--we now know in light of Bailey

--rested on an erroneous instruction. Furthermore, the general verdict

of guilt returned by the jury did not specify whether it found Phillips

to have "used" the firearm or to have "carried" it.

Because Phillips failed to object in a timely fashion to the instruction, however, we cannot simply review to determine whether the

instructional error was harmless beyond a reasonable doubt.8 Thus,

_________________________________________________________________

necessarily credited by the jury in order to convict pursuant to the erroneous instruction establishes a conviction under a proper instruction on that

element, even if the evidence does not establish a violation under the

alternate, properly instructed theory.

7 We assume, for purposes of this appeal, that an erroneous instruction

on an element of one of the bases for conviction renders that basis "legally inadequate." See Hudgins, 120 F.3d at 487 & n.2.

8 While recognizing that plain-error analysis is appropriate for review

of unpreserved Bailey instructional errors, some language in Hudgins

suggests that the Yates analysis is interchangeable with the "more tortured" plain-error analysis. Hudgins, 120 F.3d at 488 n.3. As the

Supreme Court made clear in Olano, however, the two modes of analysis

differ significantly. On review for plain error, the defendant bears the

burden of establishing that he has been prejudiced by an unpreserved

error; in contrast, harmless-error review requires the Government to

demonstrate that a preserved error was harmless. See Olano, 507 U.S. at

734. Although Hudgins is not entirely clear on this point, we must presume from its application of Yates that it was at least arguable that the

defendant properly had preserved an objection to the jury instructions on

use, rendering it more appropriate to apply the higher standard of

harmless-error review. In view of these circumstances, any suggestion in

Hudgins that plain-error review and harmless-error review are interchangeable is mere dicta.

 13
having set forth the burden the Government must satisfy in order to

prove harmlessness when the district court has submitted a

§ 924(c)(1) charge to a jury on the alternative bases of an erroneous

pre-Bailey "use" instruction and a correct "carry" instruction--that the

evidence the jury necessarily credited in order to reach a conviction

under the invalid "use" prong established a conviction under the

"carry" prong--we turn to the manner in which that standard is to be

applied on plain-error review, when the defendant rather than the

Government bears the burden of proof. In our view, Phillips' burden

of showing that his substantial rights were affected by the error

requires him to show that the jury actually convicted him based upon

an erroneous understanding of the term "use." See United States v.

Turcks, 41 F.3d 893, 898-99 (3d Cir. 1994) (holding that a defendant

seeking to establish that substantial rights were affected by the submission to the jury of an erroneously instructed basis for conviction

when the jury was also provided with a properly instructed basis must

show that the jury convicted pursuant to the erroneous instruction).

Importantly, it is not enough for Phillips to establish that it is impossible to tell whether the verdict returned by the jury rested solely on the

misinstruction, for such a showing would establish only that the error

was not harmless. See United States v. McKinney , 954 F.2d 471, 475

(7th Cir. 1992) (explaining that the mere fact that an error is not

harmless does not mean that it affects substantial rights). Rather, in

order to establish the actual prejudice required by the third prong of

plain-error review, Phillips must demonstrate that the erroneous "use"

instruction given by the district court resulted in his conviction.

Phillips cannot satisfy this burden. In order to convict under the

instructions issued by the district court, the jury must have credited

the testimony of Jerald Westberry and Leigh Tucker concerning the

events of February 2, 1994. This testimony--the only evidence presented concerning whether Phillips used or carried a firearm--

established that, prior to a drug transaction, Phillips retrieved a pistol

from a closet, loaded it, placed it in an interior pocket of his coat, and

transported it to Tucker's automobile, where he stored it within easy

reach. Thus, in making the factual finding necessary to convict under

the erroneous instruction, the jury necessarily found facts establishing

that Phillips "carried" the weapon. Under these circumstances, Phillips cannot demonstrate that the jury rested its verdict solely on the

 14
legally inadequate "use" prong. See Hudgins, 120 F.3d 487-88.9

Accordingly, the third prong of the plain-error analysis is not satisfied.

4.

Even if Phillips were able to show prejudice arising from the erroneous use instruction, it would remain within our discretion to correct

the error. See Olano, 507 U.S. at 735-36; United States v. David, 83

F.3d 638, 647 (4th Cir. 1996). Our discretion is appropriately exercised only when failure to do so would result in a miscarriage of justice, such as when the defendant is actually innocent or the error

"seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." David, 83 F.3d at 647 (internal quotation marks

omitted) (alteration in original). "Central to this inquiry is a determination of whether, based on the record in its entirety, the proceedings

against the accused resulted in a fair and reliable determination of

guilt." United States v. Cedelle, 89 F.3d 181, 186 (4th Cir. 1996).10

The circumstances present here do not warrant the exercise of our

discretion to notice plain error. As noted above, the evidence adduced

at trial points inexorably to the conclusion that Phillips carried a firearm during and in relation to a drug trafficking crime. See id. (declining to notice plain error when the evidence "permit[ted] no other

conclusion but that" the defendant was guilty). Therefore, even if

Phillips could establish that the erroneous instruction by the district

court affected his substantial rights, we would decline to reverse his

conviction.

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9 Indeed, under these facts it is possible to conclude that the error of the

district court in submitting the improperly instructed "use" prong to the

jury was harmless beyond a reasonable doubt.

10 This case does not present circumstances in which an error may warrant the exercise of our discretion to notice plain error "even though the

record demonstrates that the defendant is guilty." Cedelle, 89 F.3d at 186

n.4.

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III.

We affirm Phillips' conviction for using or carrying a firearm during and in relation to a drug trafficking offense in violation of 18

U.S.C.A. § 924(c)(1) because Phillips cannot establish that the erroneous instruction by the district court affected his substantial rights.

Concluding that Phillips' other challenges are without merit, we

affirm his remaining convictions and his sentence as well. Finally, we

affirm the sentences of Hastings and Bolder, and we dismiss Renfro's

appeal as untimely filed.

AFFIRMED IN PART; DISMISSED IN PART

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