United States v. Parnell

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-60545 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CALVIN PARNELL,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Mississippi (3:96-CV-97-D) _________________________________________________________________ February 27, 1997

Before KING, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

Calvin Parnell appeals from the denial of his successive 28

U.S.C. § 2255. Parnell argues that the evidence was insufficient

to show that he actively used a firearm under 18 U.S.C. § 924(c)

in light of United States v. Bailey, 116 S. Ct. 501 (1995), and

that his firearm conviction must be reversed because the jury was

instructed as to the liberal pre-Bailey definition of use, 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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. they were not instructed as to the meaning of “carrying” under § 924(c).

To the extent that Parnell is required to file a certificate

of appealability (COA) in order to appeal the district court’s

order, we conclude that Parnell has not made a substantial

showing of the denial of a constitutional right. See 28 U.S.C.

§ 2253(c)(2). Without deciding whether a COA is required, we

conclude that the evidence is sufficient to prove that Parnell

both actively used and carried the firearm under Bailey: Parnell

carried the rifle to the motel; it was not concealed in his

clothing but displayed because the surveillance officers saw the

weapon. See Bailey, 116 S. Ct. at 508. Because the trial

evidence demonstrated that Parnell used the rifle as defined by

Bailey and also carried it, any error from the giving of pre-

Bailey jury instructions did not seriously affect the fairness,

integrity, or public reputation of judicial proceeding, or amount

to a due process violation. United States v. Anderson, 987 F.2d

251, 259 (5th Cir.), cert. denied, 510 U.S. 853 (1993).

AFFIRMED. COA DENIED.