* This order and judgment is not binding precedent, e xcept under the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

### AUG 13 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MARLON D. WATSON,

Defendant-Appellant. No. 97-3373 (D.C. No. 97-CV-3216-EEO)

(D. Kan.)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is 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 c ase is therefore ordered submitted without oral argument.1 As defendant filed this § 2255 motion well after en actment of the

Antiterrorism and Effective Death Penalty Act of 19 96, he is subject to the requirement that he obtain a certificate of appeala bility by making “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). -2- Defendant Marlon D. Watson appeals the district cou rt’s denial of his motion to vacate, set aside, or correct his convict ions, brought pursuant to 28 U.S.C. § 2255. We grant a certificate of appealabi lity only as to defendant’s argument regarding the effect of Bailey v. United S tates , 516 U.S. 137 (1995), and affirm the judgment of the district court. 1 On June 9, 1994, defendant was stopped for speeding . During the traffic stop the officer noticed a Mac 12 semiautomatic fir earm protruding from under the driver’s seat. Defendant was arrested for viol ating a city ordinance prohibiting the carrying of a weapon in the passeng er portion of a vehicle. A search of defendant revealed a pager on his belt an d 13 individually wrapped packets of crack cocaine, totaling 4.29 grams, in h is pockets. At trial, defendant denied the cocaine was his, testifying he had inadv ertently picked up the wrong jacket at a party that evening. Defendant was conv icted of one count of possession of crack cocaine with intent to distribu te, in violation of 21 U.S.C. § 841(a)(1), and one count of using or carrying a f irearm in connection with a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1). His convictions-3-

were affirmed on appeal in United States v. Watson , No. 94-3413, 1995 WL 628114 (10th Cir. Oct. 26, 1995). On May 15, 1997, defendant filed his § 2255 motion, alleging the convictions were invalid because (1) the evidence w as insufficient to support a conviction for using or carrying a firearm under 18 U.S.C. § 924(c)(1) in light of Bailey , 516 U.S. 137; (2) the evidence of intent to distr ibute was insufficient to support a conviction; (3) the court erred in refusi ng to give an instruction regarding the lesser included offense of simple pos session; and (4) his attorney was ineffective. In a detailed Memorandum and Ord er, the district court denied defendant’s claims, finding the jury’s verdict cure d the Baileyerror, the second and third issues were procedurally barred, and defe ndant failed to demonstrate prejudice from his attorney’s alleged ineffectivene ss. As defendant has not made a substantial showing of the denial of a constituti onal right regarding his second, third, and fourth issues, we discuss only the Baile yclaim and dismiss the remaining claims. During defendant’s trial, the jury was instructed r egarding the elements of 18 U.S.C. § 924(c)(1), in pertinent parts, as follo ws:

With regard to Count II, the essential elements req uired to be proved in order to establish the guilt of the defen dant are as follows: FIRST: That the defendant committed a crime of poss ession with intent to distribute . . . .-4- SECOND: That during and in relation to the commissi on of the drug trafficking crime, the defendant used or carri ed a firearm as described . . . .

. . . . A firearm is used or carried during and in relation to a drug trafficking crime when a defendant had ready access to it, and the firearm was an integral part of the criminal undert aking, and its availability increased the likelihood that the crim inal undertaking would succeed. R. I, doc. 33, Instructions 9 & 10. After defendan t’s conviction and appeal, the Supreme Court held that the “use” prong of this cri me could not be satisfied by passive possession, requiring instead a finding that the firearm was actively employed in relation to a drug trafficking offense. See Bailey , 516 U.S. at 143-44. Therefore, the jury was incorrectly instru cted in defendant’s case. This error does not require reversal, however. In United States v. Holland , 116 F.3d 1353 (10th Cir.), cert. denied , 118 S. Ct. 253 (1997), we held an erroneous “use” instruction does not require rev ersal of the conviction when the jury was also instructed without objection on “carry,” the defendant did not dispute that the fir earm was carried on his person or in his vehicle, and the jury verdict necessarily includes an inherent finding of “carrying during and in relation to the drug crime.” The essential inquiry is 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, orstated another way, whether the verdict was the functional equivalent o f such a finding. We must be convinced that it was impossible upon th e evidence and instructions for the jury to have returned a “use” conviction without finding all the elements of a “carrying” violation as well.-5-

Id. at 1359 n.4. Here, there was no objection to the “carry” instruction, and defendant did not dispute that the firearm was carr ied in his vehicle. Further, the jury’s verdict necessarily included the elements of a “carrying” violation, that is, the jury necessarily found that defendant possessedand transported the weapon during and in relation to a drug trafficking offens e. To return a guilty verdict under the instructions, the jury had to have found that defendant had ready access to the weapon, thus satisfying the “possession” element, see United States v. Miller , 84 F.3d 1244, 1258-59 (10th Cir.), cert. denied , 117 S. Ct. 443 (1996), overruled in part on othergrounds , Holland , 116 F.3d at 1359 n.4; United States v. McDonald , 933 F.2d 1519, 1526 (10th Cir. 1991). The jury also expressly found that defendan t used or carried the firearm “during and in relation to a drug trafficking offen se.” Finally, as the only evidence linking defendant to the firearm was evide nce that it was in the vehicle he was driving, the jury’s verdict necessarily enco mpassed a finding that he transported the weapon. See United States v. Durham , 139 F.3d 1325, 1335 (10th Cir. 1998) (holding, when semi-automatic pistol fou nd between driver’s and passenger’s seats of truck stopped for speeding, ju ry’s finding that driver possessed weapon at time of traffic stop necessaril y encompassed a finding that he transported weapon to that location). This is e specially so in light of-6-

defendant’s uncontradicted testimony that he remove d the gun from the trunk and placed it in his car before driving home from the p arty. See Tr. at 67, 94-95. Defendant argues, however, that the Hollandanalysis should not apply because the jury was not instructed as to the neces sary elements of a “carry” violation. This is incorrect for several reasons. On very similar facts in Durham , 139 F.3d at 1335, we held the failure to administera complete instruction with regard to the “carry” prong did not require reversa l so long as the Holland requirements were satisfied. Further, as the defin ition of “carry” remained the same after Baileywas decided, defendant has not shown cause for fai ling to challenge the incomplete definition in his direct appeal. See, e.g. , United States v. May , No. 97-1063, 1998 WL 380540, at *2 (10th Cir. Jun e 30, 1998) (holding defendant’s failure to challenge incomplete definit ion of “carry” on direct appeal precluded consideration of issue in § 2255 motion). Lastly, we are not convinced that a failure to define the term “carry” is error. See United States v. Rhodenizer , 106 F.3d 222, 225 (8th Cir. 1997) (holding failure to define “carry” not error); United States v. Salazar , No. 97-4124, 1998 WL 339456, at *2 (10th Cir. Jun e 10, 1998) (holding failure to define “carry” in instruc tions not error as term familiar to one of ordinary intelligence); United States v. Arias-Santos , No. 96-1490, 1997 WL 452254, at **4 (10th Cir. Aug. 8, 1997) (same).-7-

Defendant has moved this court for an appointment o f counsel. Because the issues before us are not complex, defendant competently presented his arguments, and there is little likelihood he would succeed even with counsel, we deny his motion. See Rucks v. Boergermann , 57 F.3d 978, 979 (10th Cir. 1995). The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge