United States v. Ruiz

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

____________

No. 96-20524

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JUAN MANUEL RUIZ,

Defendant - Appellant.

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Appeal from the United States District Court for the Southern District of Texas (H-96-CV-335) ----------------- June 30, 1997 Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Juan Ruiz appeals the district court’s denial of his habeas

petition filed pursuant to 28 U.S.C. § 2255. Because we find that

the evidence is sufficient to support Ruiz’s conviction for

carrying a firearm in relation to a drug trafficking crime in

violation of 18 U.S.C. § 924(c)(1), we affirm the district court’s

order denying Ruiz’s § 2255 petition.

I.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Ruiz was convicted of, inter alia, using or carrying a firearm

in relation to a drug trafficking offense, in violation of 18

U.S.C. § 924(c)(1). This court affirmed the conviction on direct

appeal. In 1992, Ruiz filed a § 2255 motion challenging his

sentence under the guidelines, which the district court denied.

This court dismissed the appeal as frivolous.

After the Supreme Court issued its ruling in Bailey v. United

States, -- U.S. --, 116 S.Ct. 501, 133 L.ed.d 472 (1995), Ruiz

filed a second § 2255 motion, arguing that the evidence was

insufficient to support his § 924 conviction for using a firearm

under the Bailey definition of use. Bailey defines use as the

active employment of a firearm during and in relation to a drug

offense. The district court denied Ruiz’s motion, concluding that

the evidence was sufficient to support his conviction for using a

firearm under the Bailey definition of use; the district court also

concluded that the evidence was sufficient to support Ruiz’s

conviction under the carrying prong of § 924. Ruiz filed this

appeal.

Ruiz argues that the district court erred in dismissing his §

2255 motion because the evidence is insufficient to support his

conviction for using a firearm in relation to a drug offense in

light of Bailey. We need not consider whether the evidence is

sufficient to support Ruiz’s conviction under the “use” prong of §

924(c). For the reasons stated by the district court, the evidence

is ample to support Ruiz’s conviction under the “carry” prong of the statute.

AFFIRMED.