United States v. Howard

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 6, 1997
• Docket: 96-60422
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-60422 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CASEY GERARD HOWARD,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:96-CV-279-BN - - - - - - - - - - December 26, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Casey Howard, federal prisoner #02968-043, appeals from the

district court’s denial of his motion to set aside his sentence

pursuant to 28 U.S.C. § 2255. Howard contends that, after the

Supreme Court’s recent definition of the “use” prong of 18 U.S.C.

§ 924(c) in United States v. Bailey, 116 S. Ct. 501 (1995), the

evidence is not sufficient to support his conviction for using or

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 96-60422 - 2 -

carrying a firearm in connection with a drug-trafficking crime.

Because the evidence in the presentence investigation report and

the evidence presented at the guilty-plea hearing support a

determination that Howard carried the firearm during and in

relation to the drug-trafficking offense even though he was the

passenger rather than the operator of the vehicle, the evidence

was sufficient to support his conviction under § 924(c). See

United States v. Rivas, 85 F.3d 193, 195-96 (5th Cir. 1996). The

district court did not err by denying Howard’s § 2255 motion.

This court has not yet determined whether a certificate of

appealability (COA) is required under the circumstances of this

appeal. See 28 U.S.C. § 2253. If a COA were required, it would

be DENIED.

AFFIRMED.