United States v. Maxwell

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50410 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN PAT MAXWELL,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. W-99-CV-107 (W-91-CR-55-2) --------------------

December 8, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

John Maxwell, Texas inmate # 56084-080, pleaded guilty to

and was convicted of one count of possession of amphetamine with

intent to distribute in violation of 21 U.S.C. § 841(a)(1) and

one count of carrying a firearm during the commission of a

felony, in violation of 18 U.S.C. § 924(c). He seeks a

certificate of appeal (COA) from the dismissal of his petition

for habeas relief filed pursuant to 28 U.S.C. § 2241.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-50410 -2-

Because the district court ruled on the merits of Maxwell’s

§ 2241 petition, Maxwell’s motion for a COA is DENIED as

unnecessary. Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997).

Maxwell’s argument that he cannot be convicted of “using” or

“carrying” a firearm under Bailey v. United States, 516 U.S. 137

(1995), is refuted by the factual basis for his guilty plea which

indicates that Maxwell carried a rifle while he was in possession

of amphetamine. United States v. Hall, 110 F.3d 1155, 1161 (5th

Cir. 1997). The district court’s denial of Maxwell’s § 2241

petition is AFFIRMED.