United States v. Reynolds ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7319
VARIANCE KEITH REYNOLDS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Winston-Salem.
N. Carlton Tilley, Jr., District Judge.
(CR-90-54, CA-95-278-6)
Submitted: June 10, 1997
Decided: July 30, 1997
Before HALL, WILLIAMS, and MICHAEL, Circuit Judges.
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Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
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COUNSEL
Variance Keith Reynolds, Appellant Pro Se. Paul Alexander Wein-
man, Assistant United States Attorney, Greensboro, North Carolina,
for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Variance Reynolds appeals from the district court's order adopting
the magistrate judge's recommendation to deny relief on his 28
U.S.C.A. § 2255 (West 1994 & Supp. 1997) motion in which he
raised three claims: (1) that his attorney was ineffective for failing to
call certain witnesses at trial; (2) that the evidence was insufficient to
support his conviction under 18 U.S.C. § 924(c) (1994); and (3) that
the district court improperly enhanced his sentence for having a lead-
ership role, United States Sentencing Commission, Guidelines
Manual (Nov. 1989). Our review of the record and the district court's
order adopting the magistrate judge's recommendation with respect to
claims (1) and (3) discloses no reversible error. Accordingly, we
affirm the denial of relief as to those claims on the reasoning of the
district court. United States v. Reynolds, Nos. CR-90-54; CA-95-278-
6 (M.D.N.C. July 23, 1996).
Reynolds filed his § 2255 motion on April 20, 1995. After the gov-
ernment had responded, but while the case was still pending with the
magistrate judge, the Supreme Court decided Bailey v. United States,
___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448,
94-7492), which narrowed the definition of "use" of a firearm for pur-
poses of § 924(c). Reynolds wrote to the district court within two
weeks of the Bailey decision, asking the court to consider the case in
support of his second claim.1 The magistrate judge recommended that
Reynolds' claim under Bailey be dismissed for failure to raise it in his
original motion, while noting that Reynolds could file a second
§ 2255 motion to raise this claim. The district court adopted the mag-
istrate judge's recommendation.
Because Reynolds may be precluded from filing a successive
§ 2255 motion,2 we vacate the district court's order with respect to
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1 Originally, Reynolds claimed that the evidence was insufficient to
support his § 924(c) conviction because the Government had not shown
that the weapon was capable of firing.
2 See 28 U.S.C.A. §§ 2241, 2244 (West 1994 & Supp. 1997), amended
by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214.
2
claim (2) and remand with instructions to address Reynolds' claim in
light of the Supreme Court's Bailey decision. We dispense with oral
argument because the facts and legal contentions are adequately
addressed in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART, VACATED AND REMANDED IN PART
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