United States v. Salazar

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40594 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JORGE OMAR SALAZAR,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-96-CV-54 - - - - - - - - - - April 8, 1998

Before JOLLY, JONES, and DUHÉ, Circuit Judges.

PER CURIAM:*

Jorge Omar Salazar appeals from the district court’s order

denying his petition for a certificate of appealability [COA].

Because he filed the underlying motion for a writ of habeas

corpus pursuant to 28 U.S.C. § 2255 prior to April 24, 1996, he

did not need a COA, therefore, we construe this as an appeal from

the denial of his § 2255 motion. See United States v. Carter,

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

Salazar argues that his conviction under 18 U.S.C.

§ 924(c)(1) was invalidated by the Supreme Court’s decision in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 97-40594 -2-

Bailey v. United States, __ U.S. __, 116 S. Ct. 501, 505 (1995).

We have reviewed the record and the district court’s opinion and

find no reversible error. Because there is clear evidence on the

record that Salazar knowingly carried a weapon in his boot during

and in connection to a drug trafficking offense, we find his

argument is entirely without merit and thus frivolous. See

United States v. Still, 102 F.3d 118, 124 (5th Cir. 1996), cert.

denied, 118 S. Ct. 43 (1997); United States v. Rivas, 85 F.3d

193, 195-96 (5th Cir.), cert. denied, 117 S. Ct. 593 (1996).

Accordingly, we DISMISS the appeal pursuant to 5th Cir. R. 42.2.

DISMISSED.