United States v. Quinerly ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-7195
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FLOYD G. QUINERLY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of Virginia, at Norfolk. John A. MacKenzie, Senior District
Judge. (CR-93-32-N, CA-96-359)
Submitted: January 30, 1998 Decided: February 24, 1998
Before ERVIN and MICHAEL, Circuit Judges, and BUTZNER, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Floyd G. Quinerly, Appellant Pro Se. Harvey Lee Bryant, III,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Floyd G. Quinerly appeals from the district court's order de-
nying his motion under 28 U.S.C.A. § 2255 (West 1995 & Supp. 1997).
We deny a certificate of appealability and dismiss.
Quinerly raised two claims in his § 2255 motion: (1) that he
did not "use" a firearm as defined by the Supreme Court in Bailey
v. United States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6,
1995) (Nos. 94-7448, 94-7492); and (2) that his possession of the
firearm did not occur "during and in relation to . . . a drug
trafficking crime." Because the second of these claims is a noncon-
stitutional error that could have been raised on direct appeal,
Quinerly may not now attack it via a § 2255 motion. See Stone v.
Powell, 428 U.S. 465, 477 n.10 (1976). We therefore conclude that
the claim is waived and dismiss the appeal as to that claim.
As to Quinerly's Bailey claim, we agree with the district
court that the evidence was sufficient to sustain the jury's ver-
dict because it established that Quinerly actually "carried" the
firearm in question. See United States v. Hudgins, 120 F.3d 483,
487-88 (4th Cir. 1997); United States v. Mitchell, 104 F.3d 649,
654 (4th Cir. 1997). Accordingly, we deny a certificate of appeal-
ability and dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the deci-
sional process.
DISMISSED
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