UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).

_________________________________________________________________ OPINION

PER CURIAM:

James Gross appeals the district court's order denying his motion filed under

(1994) (current version at

(West 1994 & Supp. 1997)). Gross contends that his convic- tion under

(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. ___,

(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,

(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

.

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,

(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

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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