United States v. Carr ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-7287
DONIHUE CARR,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
John A. MacKenzie, Senior District Judge.
(CR-93-16-N, CA-95-1217-2)
Submitted: October 7, 1997
Decided: November 17, 1997
Before ERVIN and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Donihue Carr, Appellant Pro Se. Michael R. Smythers, Assistant
United States Attorney, Norfolk, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Donihue Carr appeals from the district court's order denying his
motion filed under 28 U.S.C. § 2255 (1994) (current version at 28
U.S.C.A. § 2255 (West 1994 & Supp. 1997)). Carr contends that his
conviction under 18 U.S.C. § 924(c) for using or carrying a firearm
during and in relation to a drug trafficking offense should be vacated
in light of Bailey v. United States, #6D 6D6D# U.S. ___, 116 S. Ct. 501(1995), for insufficiency of the evidence to support a conviction under
the "use" prong and for an erroneous jury instruction. We affirm.
The government properly conceded that under Bailey, Carr did not
"use" the firearm. Id. at 508 (holding that use requires active employ-
ment of the firearm). Our review of the record discloses, however,
that viewing the evidence in the light most favorable to the govern-
ment, a rational trier of fact could find beyond a reasonable doubt that
Carr "carried" the firearm at issue, as carry is defined by this court in
United States v. Mitchell, 104 F.3d 649, 653 (4th Cir. 1997). See
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (providing standard).
Further, although the district court did not address specifically Carr's
jury instruction claim, we find that applying the rationale of United
States v. Hudgins, 120 F.3d 483 (4th Cir. 1997), it is clear that the
jury found on sufficient evidence that Carr engaged in conduct consti-
tuting carrying of a firearm during and in relation to the drug traffick-
ing offense. We therefore find that neither of these claims warrants
reversal of the district court's order.
Accordingly, we affirm the district court's denial of Carr's § 2255
motion. 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 decisional process.
AFFIRMED
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