United States v. Posey

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 13, 1999
• Docket: 98-50660
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50660 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LISTON RANDOLPH POSEY, II,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. W-96-CA-132 - - - - - - - - - - July 9, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Liston Randolph Posey, II, federal prisoner # 02528-095,

appeals the district court’s denial of his 28 U.S.C. § 2255

motion to vacate, set aside, or correct his sentence. Because

Posey’s § 2255 motion was filed before the April 24, 1996,

effective date of the Antiterrorism and Effective Death Penalty

Act (AEDPA), the AEDPA does not apply to his appeal. See Lindh

v. Murphy, 521 U.S. 320, 336 (1997); United States v. Carter, 117

F.3d 262, 264 (5th Cir. 1997).

Posey argues that his conviction for using and carrying a

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. firearm during and in relation to a drug-trafficking offense

under 18 U.S.C. § 924(c)(1) should be vacated in view of Bailey

v. United States, 516 U.S. 137 (1995). The Government presented

the testimony of Charlie Bounds that Posey bartered firearms for

marijuana, which constitutes active employment of a firearm

during a drug-trafficking offense. See Bailey, 516 U.S. at 148;

United States v. Smith, 508 U.S. 223, 228-29 (1993).

Posey argues that 21 U.S.C. § 841 was unconstitutional as

applied to his case because his growing marijuana was a local

crime and the Government did not present any evidence that the

marijuana at issue traveled in interstate commerce. Posey’s

argument is foreclosed by this court’s precedent. See United

States v. Owens, 996 F.2d 59, 61 (5th Cir. 1993).

Posey argues that the Government unconstitutionally singled

him out for federal prosecution but did not prosecute his co-

growers. Because Posey failed to show that the Government acted

in bad faith in prosecuting him, the district court did not err

in holding that he had failed to establish a selective-

prosecution claim. United States v. Sparks, 2 F.3d 574, 580 (5th

Cir. 1993).

Posey argues that the district court had no jurisdiction to

convict him of the instant offense. Because Posey was charged

with federal offenses of manufacturing marijuana plants in

violation of 21 U.S.C. § 841 and using and carrying a firearm

during a drug-trafficking offense in violation of 18 U.S.C.

§ 924(c)(1), and because the offense occurred in Limestone

County, Texas, within the Western District of Texas, the district No. 98-50660 -3-

court had subject-matter jurisdiction , as well territorial

jurisdiction and proper venue. See United States v. Davis, 666

F.2d 195, 198-99 (5th Cir. 1982).

AFFIRMED.