* Pursuant to Local Rule 47.5, the court has det ermined that this opinion should not be

published and is not precedent except under the limit ed circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-40093

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAVIER RUIZ-AVILES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(G-95-CR-7-1)

_________________________________________________________________ January 13, 1997

Before JONES, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM: *

Appellant Javier Ruiz-Aviles appeals his conviction for using or carrying a firearm

during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). Appellant

contends that in light of Bailey v. United States

,

___ U.S.

___, 116 S.Ct. 501 (1996), decided after2

his trial, the district court ’s inst ruct io n on this count was in error. Since any error did not affect

substantial rights of the appellant, we affirm.

Du ring surveillance of a cargo ship and adjacent dock in Galveston, Texas, federal

customs agents spotted appellant standing on the gangway next to the s h ip carrying three large

bundles. The agents stopped appellant as he tried to exit a gate outside a guard shack. Agents found

four packages of cocaine in appellant’s black duffle bag, seven packages of cocaine inside a white rice

bag, and seven packages of cocaine inside a pair of blue jeans tied together with a rope. Agents also

found a loaded, .38-caliber pistol inside a zipped pouch in the black duffle bag. Appellant testified

at trial that he had stowed away on the ship, had found the cocaine and intended to turn it over to the

guards, and had no knowledge of the gun in the duffle. The jury convicted appellant of importation

of cocaine, possession of cocaine with intent to distribute, and using or carrying a firearm during and

in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). He was sent enced t o

concurrent 151-month terms of imprisonment for the possession and importation offenses, a

consecutive 60-month term for the firearm offense, a $4000 fine, and a $150 special assessment.

Appellant argues that th e jury was not properly instructed on the “use” prong of §

924(c), since a jury could have convicted him unde r t his prong without finding that he actively

employed the firearm in relation to the drug trafficking offense. In Bailey , the Supreme Court held

that “use” under § 924(c) is more than mere possession, and must involve the active employment of

the firearm during and in relation to the offense.

___ U.S. at

___, 116 S.Ct. at 505-06. The relevant

jury instructions in this case were as follows:

Essential

... elements of the weapon charge. First, that the defendant

committed the crime alleged in Count 1 or 2. And of course I said I3 instruct you that possession with intent to distribute cocai ne and

importing cocaine are drug trafficking crimes.

Second, that the defendant used or carr ied a firearm during and in

relationship to commission of the crime alleged in Count 1 or Count

2.

The government is not required to prove that the defendant actually

fired the weapon or brandished it at someone in order to prove use as

that term is used in these instructions.

However, you must be convinced beyond a reasonable doubt that the

firearm played a role or facilitated the commission of a drug offense.

In other words, you must find that the firearm was an integral part of

the drug offense charged.

...

The Government is only obligated to show t hat the firearm was

available to provide protecti on to the defendant in connection with his

engagement in drug trafficking, if that is what you found.

The fact that a weapon is unloaded or inoperable does not insulate a

defendant if you find that

... the firearm in question was available to

provide protection to the defendant’s drug activities.

Posse s sion of a gun, though never displayed or referred to, can

nevertheless support a conviction for carrying a firearm in relation to

the crime if [from] the circumstances or otherwise it could be found

that the defendant intended to use the gun if a contingency arose, or

to make his escape.

R. 3, 10-11. Appellant did not object to these instructions at trial.

Under Fed. R. Crim. P. 52(b), this court reviews forfeited errors under the plain error

standard, which requires appellant to show that: (1) there is an error, (2) that is clear or obvious, and

(3) that affects his substantial rights. United States v. Calverley

, 37 F.3d 160, 162-64 (5th Cir. 1994)

(en banc) (citing United States v. Olano

, 507 U.S. 725, 730-36 (1993)), cert. denied

, 115 S.Ct. 1266

(1995); Fed. R. App. Proc. 52(b). If an appellant makes the required showings, then this court has2 Contrary to appellant’s assertions, this instruction is not a structural error requiring automatic reversal. Pope

v. Illinois

, 481 U.S. 497, 502-04, 107 S.Ct. 1918, 1922-23 (1987) (erroneous jury instruction subject to harmless error

review). This situation is distinct from a case where there is not a legitimate jury verdict on every element of the

offense. Cf. Sullivan v. Louisiana

, 508 U.S. 275, 278-81, 113 S.Ct. 2078, 2080-82 (1993); United States v. Pettigrew

, 77 F.3d 1500, 1511 (5th Cir. 1996).

4 discretion to reverse the conviction s if the error seriously affects the fairness, integrity or public

reputation of judicial proceedings. Olano , 507 U.S. at 736.

The court’s in st ruct ions on use of a firearm, taken as a whole, do not convey the

active employment definition as articulated by Bailey

. United States v. Brown

, 49 F.3d 135, 137 (5th

Cir. 1995) (appellate court must determine if jury instruction “as a whole, is a correct statement of

the law applicable to the factual issues confronting them”) (internal quotati ons and citations omitted).

We will assume that plainness of error is determined as of the time of appeal. See Calverley

, 37 F.3d

at 162-63, n. 18; United States v. Rivas , 85 F.3d 193, 195 n. 1 (5th Cir.) (newly announced rule

applies to criminal cases on direct appeal) (citing Griffith v. Kentucky , 479 U.S. 314 (1987)), cert.

denied sub nom. Rivas v. U.S. , ___ S.Ct. ___, 1996 WL 664793 (1996).

However, even making such assumpti o ns, appellant has not shown a violation of a

substantial right. “ O lano counsels that in most cases the affecting of substantial rights requires that

the error be prejudicial; it must affect the outcom e of the proceeding.” 2 Calverley , 37 F.3d at 164.

Appellant has the burden of persuasion on this issue. Id.

Ap pellant was also indicted under the carrying prong of § 924(c), and, given the

court’s instructions and the facts of the case, the jury must have found facts constituting a violation

of the carrying prong. The only evidence from which the jury could have concluded that appellant

violated either prong of § 924(c) is the presence of the loaded gun in the pocket of the duffle bag that5

appellant was carrying. To convict appellant, the jury had to disbelieve his claim that he merely found

the drugs and had no knowledge of the gun. Furthermore, the jury was instructed that the firearm

had to be an integral part of the drug trafficking offense regardless of which prong of § 924(c) was

applicable. Thus, to convict appellant under the “use” prong of § 924(c), even under the expansive

“available to provide protecti on” instruction, the jury must have found that appellant carried the gun

in the duffle and that the gun was an integral part of the drug offenses. In other words, the jury must

have found that appellant carried the firearm during and in relation to the underlying drug offenses.

Given the indictment under the carrying prong, the erroneous instruction did not have any effect on

the verdict. Appellant has failed to show a violation of a substantial right.

Our court’s recent decision in United States v. Fike

, 82 F.3d 1315, 1327-28 (5th Cir.

1996), does not compel a different conclusion. In Fike , the defendant challenged the sufficiency of

the evidenc e t o sustain his conviction under § 924(c). I d. at 1327. The court found the evidence

insufficient under the use prong, but sufficient under the carry prong. Id. at 1328. However, because

the jury might have based its verdict on a legally insufficient basis, the c o urt reversed Fike’s

conviction and remanded for a t rial on the carrying prong. I d. In contrast, appellant makes no

argument that the evidence was insufficient to sustain his conviction under either prong of § 924(c)

and we have no occasion to address that question. Appellant only argues that the jury instructions

were in error and could have allowed a jury to convict him on insufficient evidence of use. Although

we agree that the instructions were partially incorrect, appellant is not entitled to a reversal because

the only route t o a finding o f use under the court’s instruction and the facts of this case is a6

concomitant finding that appellant carried a weapon during and in furtherance of the underlying

offense. Thus, appellant can not show prejudice or, consequently, the violation of a substantial right.

Even if appellant could show a violation of a substantial right, we would decline to

exercise discretion to reverse appellant’s conviction. In plain error review, we exercise discretion to

reverse only where the error affects the fairness, integrity or public reputati on of judicial proceedings.

Olano

, 507 U.S. at 736. This case does not present an actual injustice that warrants the exercise of

discretion to reverse appellant’s conviction.

For the foregoing reasons, we AFFIRM the judgment of the district court.