The Honorab le Russell G. Clark, United States District Judge 1 for the Western District of Missouri. ____________ No. 95-3701

____________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri John R. Caldwell, * * Appellant. *

____________ Submitted: March 13, 1996 Filed: October 7, 1996

____________ Before McMILLIAN, BEAM and HANSEN, Circuit Judges.

____________ McMILLIAN, Circuit Judge.

John R. Caldwell appeals from a final judgment entered in th e Distri ct Court for the Western District of Missouri upon a jur y 1 verdic t finding him guilty of distribution of methamphetamine i n vio lationof 21 U.S.C. § 841(a)(1) (count I), possession wit h in tent to distribute methamphetamine in violation of 21 U.S.C

. § 841(a)(1) (count II), using and carrying a firearm during and in relation to a drug trafficking offense (possession with intent to distri bute charged in count II) in violation of 18 U.S.C

. § 924( c)(1) (count III), and unlawful firearms possession i n violation of 18 U.S.C. § 922(g )(1) (count IV). The district court sentencedhim to a total of 180 months imprisonment, 8 year s supervised release and special assessments in the amount of-2-

$200.00. For reversal appellant argues the district court e rred in (1) denying his motion to suppress physical evidence seize d following a traffic stop, (2) denying his motion to sever th e unlawful firearms possession c ount (count IV), and (3) instructing the jury on the 18 U.S.C. § 924(c) count (count III). For th e
reason s discussed below, we affirm the convictions and sentence s except with respect to counts II and III, the sentence on count II is vacated, the conviction on count III is reversed, and the case is remanded to the district court for further proceeding s consistent with this opinion.

In ear ly April 1994 a state highway patrol trooper wa s investigating drug traffickingin Monett, Missouri, and supervised
an informant’s purchase of methamphetamine from appellant at a local mote l. The trooper noted the make and license plate o f appellant’s car. On September 21, 1994, Chief of Police Fran k Preston of Pierce City, Missouri, received radio information that
a gray Camaro with a specific Missouri license plate wa s app roaching Pierce City, had been speeding and had almost ru n another car off the road. Preston checked the license plate number and learned that the car was registered to appellant. At ab out the same time, Lieutenant Bill Wegrzyn, a police officer from Monett, Mis souri, told Preston that appellant probably did not have a driver’s license because several months earlier the Monett police department had processed information that appellant’s license had beensuspended and that appellant had been arrested two or thre e
wee ks earlier with a concealed weapon. Preston also receive d info rmationfrom another law enforcement officer that appellan t might be involved in a drug transaction.
Acting on this information, Preston posit ioned his patrol car where he could observe traffic entering Pierce City. He saw th e Camaro a nd checked its speed with his radar unit; the Camaro wa s-3-

tra velling slightly faster than the posted speed limit. Presto n followed the Camaro, activatedhis lights, and stopped the Camaro.-4-

Presto napproached the car and asked appellant for his driver’ s licens e. Appellant responded that the Monett police had hi s driver’s license because it had been suspended. At this poin t Prestonasked appellant to get out of the car and fo r ide ntificationinformation. Appellant got out of the car an d
remove da fanny pack and placed it on the front seat. Presto n started to open the car door, but appellant objected. Prest on then contacted the Monett police department by radio. The Monett police department reported a possible suspended driver’s license fo r appellant. Preston arrested appellant for driving on a suspended dri ver’s license and requested his permission to search the car

. Appellant consented to the search. Preston and Wegrzyn, who ha d arrivedon the scene to assist Preston, searched the passenge r compartment, including the hatchback area, and foun d methamphetamine, five firearms (one of which was loaded), and drug paraphernalia.
Appellant f iled a motion to suppress physical evidence. The distri ct court held a suppression hearing. Preston and Wegrzy n testified for the government. Preston testified at the supp ression hearing th at he was not going to issue a speeding ticket, bu t instead wanted to check the st atus of appellant's driver's license and to talk to appellant about the reported speeding and careless andimprudent driving. The district court credited thei r testimony. The district court found that Preston had probabl e
cau se to stop the car because he reasonably suspected tha t app ellant was driving with a suspended driver’s license. Th e district court also found that the warrantless search of the ca r was an inventory search or, inthe alternative, that appellant had consented to the search. The district court denied the motion to supp ress physical evidence (the district court also granted th e motion to suppress certain inculpatory statements; that part of the-5-

district court’s suppression ruling is not an issue in thi s appeal).-6-

Immediately

before trial began, defense counsel made an oral motion to sever the unlawful f irearms possession count (count IV). Def ense counsel argued that joinder of that count would allo w otherwise inadmissible evidence of other crimes, specifically his pr ior felony convictions, including one for possession o f methamphetamine for sale, to b e introduced at trial. The district court denied the motion to sever. At trial the government use d Califo rnia court records to establish appellant’s prior felon y convictions. Portions of the court records read to the jur y includedinformation about the type of offense, the date o f conviction, and the length of the sentence. Appellant did no t testif y. Defense counsel objected to instruction No. 16, whic h defined the phrase “used a fir earm” as “having a firearm available to ai d in the commission of the [drug trafficking] crime.” Th e instruction did not separately define “carry.” Defendant counsel object edto the instruction on the ground that it improperl y shift edthe burden of proof to the defense. The district cour t denied the objection. The jur y found appellant guilty on all four counts. The district court sentenced appellant to a total of 180
mon ths imprisonment, 8 years supervised release, and specia l assessments in the amount of $200.00. This appeal followed.

MOTION TO SUPPRESS EVIDENCE
Appellant first argues the district court erred in denying hi s motion to suppress certain physical evidence seized from his car. He argues the traffic stop was invalid because the police lacke d probable cause to stop his car and to arrest him. He also argues th e traffic violations were merely pretextual because the rea l reason the police wanted to stop his car was that they suspe cted it contained illegal drugs. He argues the warrantless search of his car cannot stand if the traffic stop was unlawful. We disagree.-7-

“[A]s a general matter determinations of reasonable suspicion and probable cause should be r eviewed de novo on appeal.” Ornelas-8-

v. Unit ed States , 116 S. Ct. 1657, 1663 (1996). However, “ a reviewing court should take care both to review findings o f hi storical fact only for clear error and to give due weight t o inferences drawn from those fa cts by resident judges and local law enf orcement officers.” Id. ; e.g., United States v. Johnigan , 9 0 F.3d 1332, 1336 (8th Cir. 1996).

The district court correctly concluded that there was probabl e
cause to suspect that a traffic violation had occurred. Presto n had a reasonable suspicion, based upon objective facts obtaine d fromother law enforcement sources, that appellant was probabl y dri ving with a suspended driver’s license. In addition, Presto n had observed appellant speedin g. “[A]ny traffic violation, even a minor one, gives an officer probable cause to stop the violator

. If the officer has probable cause to stop the violator, the stop is objectively reasonable and any ulterior motivation on the of ficer’s part is irrelevant.” United S tates v. Bell , 86 F.3d 820, 822 (8th Cir

. 1996) (citation omitted); petition for cert. filed , No. 96

- 6046 (U. S. Sept. 17, 1996); e.g., United States v. Maza , 93 F.3 d 1390, 1396 (8th Cir. 1996). The Supreme Court expressly rejected the pret ext argument in Whren v. United States , 116 S. Ct. 1769 , 1774- 75 (1996). “[T]he fact that the officer does not have th e state of mind hypothecated by the reasons which provide the legal ju stificationfor the officer’s action does not invalidate th e
ac tiontaken as long as the circumstances, viewed objectively , justify that action. . . . Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 1774 (citationomitted). In other words, “so long as police hav e pro bable cause to believe that a traffic violation has occurred , the stop is valid even if the police would have ignored the traffic violation but for their suspicion that greater crimes are afoot.” United States v. Thomas , 93 F.3d 479, 485 (8th Cir.).-9-

We also hol d that the search of the car was lawful. “[W]hen a [police officer] has made a lawful custodial arrest of the-10-

occupant of an automobile, [th e officer] may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton , 453 U.S. 454, 460 (1981 ) (footnotes omitted). “[T]he police may also examine the contents of any containers [whether opened or closed] found within th e passen ger compartment.” Id. (citations and footnote omitted)

. Here, Preston lawfully arrested appellant because he had probable
caus e to believe that appellant's driver’s license had bee n suspended. Following appellant’s arrest, the police could l awfully
se archthe passenger compartment of the car, including th e hatchback portion of the car. See United States v. Doward , 41 F.3d 789, 793-94 (1st Cir. 1994) (hatchback of two-door car), cert
. denied , 115 S. Ct. 1716 (1995); United States v. Cleveland , 96 6 F. 2d1459 (8th Cir. 1992) (per curiam) (table) (hatchback ; defendant did not argue that hatchback was trunk as opposed t o passenger compartment of car) (text at 1992 WL 139360). Th e firea rms, ammunition, some of the methamphetamine, and dru g paraphernalia were found in the hatchback portion of the car.

SEVERANCE OF UNLAWFUL FIREARMS POSSESSION COUNT
Appellant next argues the district court abused its discretio n in den ying his motion to sever the unlawful firearms possessio n count (cou nt IV). He argues that the joinder of the unlawfu l firear ms possession count allowed the jury to hear otherwis e inadmissible evidence about his prior convictions.
Ordinarily, we review severance decisions for abuse o f discretion. E.g., United States v. Felici , 54 F.3d 504, 506 (8th Cir.), cert. denied , 116 S. Ct . 251 (1995). However, because this motion was not timely filed wi thin 20 days of the omnibus pretrial motions order, we may reverse only for plain error. E.g., United States v. Olano , 507 U.S. 725, 732-34 (1993).-11-The government could have reduced any pos sible prejudice even 2 further by simply stipulating that appellant had been convicted of a second state felony without introducing any information ab out the nature of the prior offense or the sentence. See United States v. Felici , 54 F.3d 504, 506 (8th Cir.), cert. denied , 116 S. Ct. 251 (1995). -12- We find no error was committed by the dis trict court. First, the more prejudicial of the two prior convictions, that fo r possession of methamphetamine for sale, would have been admissible in a trial on the drug trafficking counts alone as other crime s evidence under Fed. R. Evid. 4 04(b) to prove intent and knowledge. See United States v. Shoffner , 71 F.3d 1429, 1431-32 (8th Cir

. 199 5). The prior conviction for receiving stolen property woul d not have been admissible under Fed. R. Evid. 404(b); however, any prejudice was limited by the method of proof used. As notedabove, the government read to the jury portions of court records tha t includedinformation about the type of offense, the date o f
co nviction, and the length of the sentence. In addition, ther e 2
was little possibility that the jury was confused about th e eviden ce related to each count in light of the cautionar y instru ctiongiven by the district court. The cautionar y instructionlimited the jury’s consideration of the two prio r felony convictions to the unlawful firearms possession count and of the conviction for possession of methamphetamine for sale to intent and knowledge with respect to the drug trafficking counts only.

BAILEYISSUE
Appellant next argues the district court erred in instructing the jury on the 18 U.S.C. § 924(c) count (count III). At tria l defense counsel objected to instruction No. 16, which defined the phrase “ used a firearm” as “having a firearm available to aid i n the commission of the [drug trafficking] crime,” on the grou nd that-13-

it improperly shifted the burden of proof to the defense. H owever, on appeal, appellant argues, correctly, the instruction as g iven is-14-

inconsistent with Bailey v. United States , 116 S. Ct. 501, 505-08 (1995). Because this change i n the grounds of objection in effect constitutes no objection, we may reverse only for plain erro r. For the reasons discussed below, we find plain error and accordingl y re verse the conviction on count III and remand the case to th e district court for further proceedings. We also vacate th e sentence on count II and remand that count to the district cour t for possible resentencing.

The indictment charged that appellant knowingly used an d carrieda firearm during and in relation to a drug traffickin g offense. However, as noted above, instruction No. 16 referred to the cr ime of “using a firearm” and defined the phrase “used a firearm” as “having a firearm available to aid in the commis sion of the crime.” The instruction did not separately define the ter m “carry.” As noted in United S tates v. Webster , 84 F.3d 1056, 1066 n.8 (8th Cir. 1996), “it appears that this Court’s traditiona l definition of the term ‘use’ was so expansive that it effectively swallowed the word ‘carry.’ . . . [T]he instruction defined ‘use’ and ‘carry’ collectively, and the charge did not refer to th e words as having separate meanings.” This instruction allowed the jury to fin dthat appellant criminally used or carried the firearm i n question due to the “mere pres ence and ready availability of [the] firea rm” and was a correct statement of the law in this circui t (andother circuits) at the time of appellant’s trial, that is , pr e- Bailey

. Id. at 1066 (footnote omitted) (analyzing simila r Bailey error as plain error), citing United States v. Mejia , 8 F.3d 3, 5 (8th Cir. 1993). Subsequently, the Supreme Court issued its opinion in Bailey v. United St ates , holding that the word “use” in 18 U.S.C. § 924(c)(1) “requires evidence sufficient to show a n active employment of the firearm by the defendant, a use tha t makes the fi rearm an operative factor in relation to the predicat e off ense,” 116 S. Ct. at 505, such as brandishing, displaying ,-15-

bartering, striking with, as well as firing or attempting to fire a firearm, but not the mere storage of a firearm near drugs or drug-16-

pr oceeds. Id. at 508; see, e.g., United States v. Rehkop , No
. 95-3446, 1996 WL 526239, at *4 (8th Cir. Sept. 18, 1996).
The governm ent concedes that instruction No. 16 is erroneous in lig ht of Bailey . Brief for Appellee at 19. However, th e government argues that the error was not “plain,” that is, c lear or obvious under current law, bec ause “current law,” as used in plain error analysis, means the law applicable at the time of trial, not
onappeal. We disagree. This court, following several othe r circuits, has held that “in deciding whether an error is clea r under current law, the proper focus is the law applicable onappeal rather than at trial.” United States v. Webster , 84 F.3d at 1067 (citing cases). We find the instruction as given is clearl y erroneous under current law.

We also find the instruction as given affected appellant’ s sub stantial rights. The instruction as given was erroneous wit h regardto an essential element of the crime, that is, th e definiti onof “use.” Id., citing United States v. Ryan , 41 F.3 d 361, 370 (8th Cir. 1994) (en banc) (Arnold, C.J., concurringin the judgment in part and dissentin g in part), cert. denied , 115 S. Ct. 1793 ( 1995). The jury could have convicted appellant solel y because it found that he “used” the firearms merely by concealing themin the car and having them readily available for use, whic h
wou ldhave been squarely inconsistent with Baileyand would hav e unavoidablyprejudiced appellant. Moreover, the governmen t concedes that the evidence is insufficient to support th e
co nvictionbecause the record does not contain evidence o f appellant’s active employment of the firearm. Brief for Appellee at 21. Under these circumstances, appellant has established that the error affected the outcome of the district court proceeding s and the government cannot show otherwise. In other words, we find the error is not harmless. We also believe that failure to correct-17-

the error could result in a miscarriage of justice and woul d seriously affect the fairness, integrity or public reputation of-18-

judici al proceedings. Accordingly, we reverse the conviction o n count III.

We next c onsider whether to remand for a new trial. Th e government argues that the evidence is sufficient to a conviction for “carrying” a firearm during and in relation to a dru g trafficking crime and that the case should be remanded for ne w trial on that count because the reversal is based on trial erro r and not insufficiency of the evidence. We agree. The indictment allege dappellant violated 18 U.S.C. § 924(c)(1) by “using” an d “carrying” firearms. As noted above, the jury was not instructed on the “carrying” prong of 18 U.S.C. § 924(c)(1). This court has recognized that “ Bailey left the ‘carry’ prong of section 92 4(c)(1) int act, as well as the pre- Baileycases analyzing the ‘carry ’ pr ong.” United States v. Willis , 89 F.3d 1371, 1378 (8th Cir

. 1996) (“carry” includes transporting firearms in the passenge r compartment of a car loaded wi th drugs), petition for cert. filed , No. 95-5793 (U.S. Sept. 3, 1996); see , e.g. , United States v

. Whi te , 81 F.3d 80, 83-84 (8th Cir. 1996) (“carry” include s physically carrying firearm while possessing crack with intent to dis tribute); United States v. Freisinger , 937 F.2d 383, 387 (8t h Cir. 1991) (pre- Baileycase holding transporting firearm i n passe nger compartment of vehicle satisfies “carry” prong o f § 924(c)). Moreover, we note that the Supreme Court, faced with a similar situation in Bailey , remanded the case to the court o f appeals with directions to consider whether the “carry” pron g of 18 U.S.C. § 924(c)(1) provided analternative basis for upholding the convictions. 116 S. Ct. at 509 (indictment charged both “using ” and“carrying”); see also United States v. Miller , 84 F.3d 1244 , 1257-61 (10th Cir. 1996).

Afte r reviewing the record evidence, we think a properl y instructedjury could have returned a guilty verdict under th e-19-

“carry” prong of 18 U.S.C. § 924(c)(1). “[T]he ordinary mea ning of the word ‘carry’ includes transporting firearms in the passenger-20-

compartment of a car loaded wi th drugs.” United States v. Willis , 89 F.3d at 1378 (citing cases from other circuits), citing United States v. Freisinger , 937 F.2d at 387 (transporting firearm i n pas senger compartment of vehicle loaded with drugs satisfie s “carry” prong); accord United States v. Miller , 84 F.3d at 1257-61 (“carry” prong satisfied by evidence that defendant possessed and transported firearm in van in close proximity to drugs); see also Bailey v . United States , 116 S. Ct. at 509 (“carry” prong bring s some offenders who would not satisfy “use” prong within reach o f § 924(c); firearm can be carri ed without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a dru g transa ction); United States v. White , 81 F.3d at 83 (holdin g government must prove defendant bore firearm on or about his person du ring and in relation to drug trafficking offense, citin g dictionary definitions of “carry”). Here, the evidence show ed that appellant had been driving the Camaro and that the police found a lo adedfirearm and 45 grams of methamphetamine in a bag in th e hatchback portion of the Camaro, an area regarded (at least in case law) as generally within reach and available for use by th e occupa nts of the car. See United States v. Doward , 41 F.3d a t 793 -94 (hatchback), cert. denied , 115 S. Ct. 1716 (1995); Unite d Sta tes v. Cleveland , 966 F.2d 1459 (hatchback; defendant did no t argue that hatchback was trunkas opposed to passenger compartment of car) (text at 1992 WL 139360). This evidence is sufficient to prove that appellant carried a firearm during and in relation to a dru g trafficking crime in violation of 18 U.S.C. § 924(c)(1)

. Accordingly, we remand for a new trial on that count.
The government requests that, if we rever se the conviction on count III, we vacate the sentence as to count II, the posses sion of methamphetamine with intent to distribute count. The governmen t argues that if, on remand, count III is dismissed or if appellant is acquitted on that count, a two-level enhancement may b e-21-

appropriate under U.S.S.G. § 2D1.1(b)(1), which provides tha t possession of a dangerous weapon, including a firearm, by the-22-

defendant is a specific offense characteristic. The distric t court did no t consider a § 2D1.1(b)(1) enhancement because such a n enhancement would have been double-counting in light of appe llant’s conviction on the 18 U.S.C. § 924(c)(1) count. U.S.S.G. § 2K2.4,
comment. n. 2 & background. However, the prohibition agains t double-counting would not apply in the absence of a 18 U.S.C

. § 924(c)(1) conviction. For that reason, we vacate the sent ence as to count II and remand the case to the district court to consider wh ether a sentence enhancement under U.S.S.G. § 2D1.1(b)(1) i s
warra nted. See United States v. Rehkop , 1996 WL 526239, at *5 ; United States v. Thomas , 93 F.3d at 488.
Accordingly, the convictions and sentences are affirmed excep t with r espect to counts II and III, the sentence on count II i s vacated, the conviction on count III is reversed, and the case is remanded to the district court for further proceedings consistent with this opinion.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.