Gross v. United States ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6182
JAMES ELMER GROSS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frank A. Kaufman, Senior District Judge.
(CR-90-192-K, CA-96-3088-K)
Submitted: December 2, 1997
Decided: December 22, 1997
Before WIDENER, HALL, and ERVIN, Circuit Judges.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
James Elmer Gross, Appellant Pro Se.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
James Gross appeals the district court's order denying his motion
filed under 28 U.S.C. § 2255 (1994) (current version at 28 U.S.C.A.
§ 2255 (West 1994 & Supp. 1997)). Gross contends that his convic-
tion under 18 U.S.C. § 924(c) (1994), for using or carrying a firearm
during and in relation to a drug trafficking crime should be vacated
because the trial court's instructions to the jury were erroneous in
light of Bailey v. United States, ___ U.S. ___, 116 S. Ct. 501 (1995).
Contrary to Gross's position on appeal, in order to establish entitle-
ment to relief on collateral review, he is required to establish that the
allegedly erroneous instruction was actually prejudicial, to the degree
that it violated his due process rights. See United States v. Frady, 456
U.S. 152, 169 (1982). Gross also erroneously asserts that he is entitled
to relief under Federal Rule of Criminal Procedure 52(b). The plain
error rule provided by Rule 52(b) is inapplicable to collateral proceed-
ings. See id. at 158.
We have found that, even where the trial court's instructions
regarding the "use" prong of § 924(c) are erroneous, and the court
failed to elaborate as to the meaning of "carry" under the statute, the
defendant is not prejudiced if the record establishes that the jury nec-
essarily found the elements of carry as defined by case law. See
United States v. Hudgins, 120 F.3d 483, 487 (4th Cir. 1997). One cir-
cumstance in which the "carry" prong is clearly satisfied, even after
Bailey, is where the defendant actually possesses a firearm on his per-
son during the commission of the predicate crime. See id. In this case,
there is no dispute that Gross possessed a loaded pistol in the front
area of his waistband at the time he was arrested for the predicate
offense. Therefore, even assuming that the trial court's instructions
were erroneous in this case, we find that the alleged error does not
warrant vacatur of Gross's conviction.
Accordingly, we deny a certificate of appealability and dismiss this
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
DISMISSED
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