33 F.3d 60
UNITED STATES of America, Plaintiff-Appellee,
v.
Michael Gary BARBER, Defendant-Appellant.
No. 93-30348.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 15, 1994.
Decided July 17, 1994.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: GOODWIN, D.W. NELSON, and HALL, Circuit Judges.
MEMORANDUM*
Michael Gary Barber appeals his conviction and sentence for two counts of using or carrying a firearm during and in relation to a drug trafficking crime. 18 U.S.C. Sec. 924(c). He argues that the two gun convictions must be reversed because the district court failed to instruct the jury as to an essential element of the offense. We agree. The district judge failed to instruct the jury that it must find that Barber used or carried the guns in relation to the drug offense. This is reversible constitutional error under United States v. Mendoza, 11 F.3d 129 (9th Cir.1994).
Since the government has not persuasively distinguished Mendoza, we must reverse Barber's convictions on counts three and five of the second superceding indictment and remand for a new trial or further proceedings. Because we reach this conclusion, we do not address Barber's claims about his sentence on these counts and express no opinion on the merits of these claims.
REVERSED in part and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3