UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 97-4090
v.	(D. Utah)
TOMAS EDWARD ELROD,

Defendant - Appellant.	(D.C. No. 96-CV-343 G)

ORDER AND JUDGMENT*

Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this 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 case is therefore ordered submitted without oral argument.

Tomas Edward Elrod appeals from the district court's dismissal of his 28 U.S.C. § 2255 petition to vacate, set aside, or correct an illegal sentence. We affirm the district court's dismissal of the petition.1

Petitioner pleaded guilty to one count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846 and one count of using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).2 In the original judgment entered in July 1989, the district court sentenced petitioner to 114 months' imprisonment; a modified judgment was entered in June 1993.

In April 1996, petitioner filed in district court his § 2255 motion asking the court to vacate his sentence for the offense of using or carrying a firearm in relation to a drug trafficking offense, asserting that his conviction is now improper based on the Supreme Court's ruling in Bailey v. United States, 116 S. Ct. 501 (1995). In particular, petitioner argued that the Court's more narrow interpretation of the "use" prong of § 924(c) should apply equally to the "carry" prong, thus invalidating his guilty plea. The U.S. Magistrate Judge issued his Report and Recommendation in January 1997, recommending the petition be denied. In June 1997, the district court approved the recommendation of the magistrate and denied petitioner's § 2255 motion.

Because petitioner was convicted pursuant to a guilty plea rather than a jury trial, we must only "'mak[e] such inquiry as shall satisfy [us] that there is a factual basis for the plea.'" United States v. Barnhardt, 93 F.3d 706, 709 (10th Cir. 1996) (quoting Fed. R. Crim. P. 11(f)). Accordingly, the determination of petitioner's motion depends on whether there is an adequate factual basis for his guilty plea. Id. at 709-10; United States v. Ruth, 100 F.3d 111, 112 (10th Cir. 1996).

"The acceptance of a guilty plea is deemed a factual finding that there is an adequate factual basis for the plea." Therefore, our review is under the clearly erroneous standard, and a finding of fact is not clearly erroneous unless it is without factual support in the record or, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made.

Barnhardt, 93 F.3d at 710 (citations omitted).

Although Bailey effectively overruled our prior cases relating to the "use" prong of § 924(c), there is "nothing in Bailey that conflicts with our pre-Bailey 'vehicular carrying' line of cases.3 United States v. Miller, 84 F.3d 1244, 1259 (10th Cir.) cert. denied, 117 S. Ct. 443 (1996), and overruled on other grounds by United States v. Holland, 116 F.3d 1353 (10th Cir. 1997). As such, our pre-
Bailey carrying cases, holding that the government is required to prove "only that the defendant transported a firearm in a vehicle and that he had actual or constructive possession of the firearm while doing so," are still valid. Miller, 84 F.3d at 1259; see also United States v. Richardson, 86 F.3d 1537, 1548 (10th Cir. 1996) ("A conviction under the 'carry' prong of section 924(c)(1) requires possession of the firearm through dominion and control, and transportation or movement of the weapon."). In this case, although petitioner did not "use" the firearm as Bailey defines "use" in terms of § 924(c), it is clear that petitioner carried a firearm. He admitted at the time of his arrest that he had a firearm in his vehicle, and a 9mm pistol was subsequently found along with other drug paraphernalia.4 Petitioner's Br. at 4; Respondent's Br. at 2. Because we find that petitioner's conduct meets the definition of "carry" under § 924(c), we conclude that he has suffered no prejudice from the change in the law with respect to "use" and that there is an adequate factual basis for his plea.5

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge