United States of America, Plaintiff-appellee, v. Richard M. Canon, Defendant-appellant, 97 F.3d 1461 (9th Cir. 1996)

Before: BEEZER and THOMPSON, Circuit Judges, and GONZALEZ, District Judge.^** 

MEMORANDUM^*** 

Richard M. Canon appeals his guilty plea conviction, pursuant to 28 U.S.C. § 924(c), for "us [ing] or carr [ying]" a firearm "during and in relation to" his attempt to possess methamphetamine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a) (1) and 846. We affirm.

In his opening brief, Canon argues that his conviction should be reversed because he was not "using" the firearm in question. The government concedes that Canon was not "using" the firearm as that term was recently defined in Bailey v. United States, 116 S. Ct. 501 (1995). The government argues, however, that Canon was "carrying" the firearm so Canon's conviction for "using or carrying" the firearm should be upheld.

In his reply brief, Canon argues for the first time that he was not "carrying" the firearm. We note that " [t]he general rule is that appellants cannot raise a new issue for the first time in their reply briefs." Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990) (citations omitted). In some cases, however, we will "consider the issue [if] the appellee has not been misled and the issue has been fully explored." Id. (citation omitted).

Whether it was waived or was not, Canon's argument that he was not "carrying" the firearm "during and in relation to" his drug trafficking crime fails. First, transporting a loaded firearm within arms reach on the back seat of an automobile clearly constitutes "carrying" the firearm. See United States v. Staples, No. 95-30274, slip op. 7747, 7754 (9th Cir. June 28, 1996) (transporting firearm within automobile constitutes "carrying" if "within reach and immediately available for use"). Second, Canon admitted in his plea agreement that he transported the firearm in his automobile "in relation to" the methamphetamine purchase. Finally, despite the fact that Canon left his automobile to purchase the drugs, he carried the firearm "during" his crime because his attempt to possess the methamphetamine began before the final exchange occurred. See United States v. Davis, 960 F.2d 820, 826-27 (9th Cir.) (defendant took substantial step in crime of possessing with intent to distribute by appearing at meeting with purchase money), cert. denied, 506 U.S. 873 (1992).

AFFIRMED.