United States v. Hatheway

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-30288 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

THEODORE HATHEWAY,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 96-CA-305"A” - - - - - - - - - - July 25, 1996 Before DAVIS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

A movant for in forma pauperis (IFP) status on appeal must

show that he is a pauper and that he will present a nonfrivolous

issue on appeal. Carson v. Polley, 689 F.2d 562, 586 (5th Cir.

1982). In the absence of a nonfrivolous issue, the appeal will

be dismissed. 5th Cir. R. 42.2.

Theodore Hatheway, BOP No. 22100-034, challenges the factual

basis supporting his guilty-plea conviction for using and

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-30288 - 2 -

carrying a firearm in connection with a drug trafficking crime in

violation of 18 U.S.C. § 924(c)(1). Hatheway contends that he

did not use any firearm as defined by Bailey v. United States,

116 S. Ct. 501 (1995), and requests that Bailey be applied to his

case to invalidate his conviction.

The record demonstrates that Hatheway did use firearms

within the context defined by Bailey, as he openly displayed the

guns in his safe during a drug transaction, such that they were

an “obvious and forceful presence.” Id. at 508. Hatheway does

not present a nonfrivolous issue for appeal. See Howard v. King,

707 F.2d 215, 219-20 (5th Cir. 1983). IFP is DENIED, and

Hatheway’s appeal is DISMISSED as frivolous. See 5th Cir. 42.2.