United States v. Francis Frederick Behr

48 F.3d 1229, 1995 U.S. App. LEXIS 21876, 1995 WL 81952

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 28, 1995
• Docket: 94-35717
• Status: Published

Opinion

48 F.3d 1229
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Francis Frederick BEHR, Defendant-Appellant.

No. 94-35717.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 21, 1995.*
Decided Feb. 28, 1995.

Before: SCHROEDER, CANBY, and LEAVY, Circuit Judges.

MEMORANDUM**

Federal prisoner Francis Frederick Behr appeals pro se the district court's summary dismissal of his 28 U.S.C. Sec. 2255 motion to vacate his sentence for his guilty plea conviction of using or carrying a machine gun in relation to a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1). Behr contends that the district court was without jurisdiction to sentence him under Section 924(c), because he was not convicted of an underlying drug trafficking crime. Behr admitted in his plea agreement that he used the firearm in relation to a drug trafficking crime. Behr's guilty plea, as well as his admission to the court at his change of plea hearing, was sufficient to establish his guilt of a drug trafficking crime as an element of an offense under section 924(c)(1). See United States v. Hunter, 887 F.2d 1001, 1003 (9th Cir.1989), cert. denied, 493 U.S. 1090 (1990). Accordingly, the district court's dismissal is

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3