UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PHILIP SCOTT MAY,

Defendant-Appellant.	No. 97-1063

(D.C. No. 96-N-2245)

(Colorado)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, BRORBY 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 cause is therefore ordered submitted without oral argument.

Philip Scott May brought this action under 28 U.S.C. § 2255, seeking to vacate his conviction under 18 U.S.C. § 924(c) in light of the Supreme Court's recent decision in Bailey v. United States, 116 S. Ct. 501 (1995). The district court denied relief and granted Mr. May a certificate of appealability pursuant to 28 U.S.C. § 2253.1 Mr. May appeals and we affirm.

Mr. May was convicted of four drug charges and of carrying a firearm in relation to a drug trafficking crime in violation of section 924(c)(1). The firearm conviction was based on Mr. May's conduct in driving to meet his co-defendant at the scene of a proposed drug deal, bringing the purchase money in the trunk of his car, and carrying a handgun on his person. Although Mr. May was charged only under the "carry" prong of section 924(c)(1), the jury was instructed without objection on both the "use" and "carry" prongs.2 Mr. May did not object to the form of the instruction at trial, nor did he assert it as error in his direct appeal. See United States v. May, 52 F.3d 885 (10th Cir. 1995).

As Mr. May recognizes in this appeal, the circumstances here are quite unusual. While Mr. May was charged only with carrying under section 924(c)(1), the jury was instructed on both use and carry. The instruction itself is erroneous under Bailey with respect to the "use" prong, and incomplete as to the "carry" prong under Tenth Circuit and Supreme Court law, as we discuss below. No claim was made at trial or on direct appeal that the jury was improperly instructed on a matter not charged, nor was the substance of the instruction itself challenged. Mr. May admitted at trial that he took the gun from his house and that he carried it on his person when he drove to the scene of the purported drug deal and waited in the car for his co-defendant to complete the transaction. Mr. May nonetheless asserts that he is entitled to a new trial on the section 924 (c)(1) charge because the instruction was directed in part to using a firearm, an offense not charged in the indictment, and because the instruction on carrying a firearm was incomplete.3

When, as here, a petitioner has defaulted the claims he seeks to raise in a section 2255 motion, he must ordinarily show cause for his default and actual prejudice resulting from the error he asserts. See United States v. Holland, 116 F.3d 1353, 1356 (10th Cir.), cert. denied, 118 S. Ct. 253 (1997). We held in Holland that the petitioner had shown cause for his failure to raise his Bailey argument at trial and on direct appeal because Bailey overturned a longstanding and widespread practice to which the Supreme Court had not spoken, but which a nearly unanimous body of lower courts had adopted. Id. We concluded that an argument based on the position later adopted in Bailey had no reasonable basis in existing law. Id.

However, no such impediment prevented Mr. May from challenging the instruction at issue here either at trial or on direct appeal as an improper instruction on a prong not charged in the indictment or as an incomplete description of a "carrying" offense. Both of those arguments were available at the time of Mr. May's trial and direct appeal under existing law, and subsequent authority has not undermined their validity. As we pointed out in Holland, "nothing in Bailey . . . conflicts with our pre-Bailey 'vehicular carrying' line of cases." 116 F.3d at 1357 n.2 (internal quotations and citation omitted). Moreover, the Supreme Court has recently construed the elements of a section 924(c)(1) violation under the "carry" prong in a manner completely congruent with those cases. See Muscarello v. United States, Nos. 96-1654, 96-8837, 1998 WL 292058 (U.S. June 8, 1998).

It is true, as Mr. May asserts, that under our vehicular "carrying" cases the government must prove the defendant both "'transported a firearm in a vehicle and that he had actual or constructive possession of the firearm while doing so.'" Holland, 116 F.3d at 1357 n.2 (quoting United States v. Miller, 84 F.3d 1244, 1259 (10th Cir. 1996)). The instruction that Mr. May challenges required the government to prove possession, but did not directly address the transportation element required by our cases. Nonetheless, Mr. May has offered no cause for his failure to raise this deficiency either at trial or on direct appeal,4 and we therefore are precluded from considering it. See United States v. Frady, 456 U.S. 152, 167-68 (1982).

Accordingly, we AFFIRM the denial of Mr. Mays' motion to vacate his conviction under 18 U.S.C. § 924(c)(1).

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge