United States v. Beamer

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-60313 Conference Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WOODROW BEAMER,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Mississippi USDC No. 3:94CV043D - - - - - - - - - - June 25, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Woodrow Beamer appeals from an order dismissing his motion

pursuant to 28 U.S.C. § 2255. He argues that his convictions for

using and carrying a firearm during a drug trafficking offense

and possession with intent to distribute cocaine base violated

the Double Jeopardy Clause. We AFFIRM the district court's

dismissal of this claim for essentially the same reasons set

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-60313 -2-

forth by the district court. United States v. Beamer, No.

3:94CV043D (N.D. Miss. March 9, 1995).

We do not consider Beamer's new claim on appeal that the

evidence was insufficient to show an active employment of the

firearm. See United States v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994) (en banc) (citing United States v. Olano, 507

U.S. 725, 731-37 (1993)), cert. denied, 115 S. Ct. 1266 (1995).

Further, Beamer's claim that his sentence constituted racial

discrimination is deemed abandoned. See Brinkmann v. Dallas

County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

The appeal is without arguable merit and thus frivolous.

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).

Because the appeal is frivolous, it is DISMISSED. 5th Cir.

R. 42.2.

APPEAL DISMISSED.