United States v. Escobido-Davila ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40049
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUILLERMO ESCOBIDO-DAVILA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-94-CR-91-5; M-96-CV-6
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November 23, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
Guillermo Escobido-Davila appeals the district court’s
denial of his 28 U.S.C. § 2255 motion. On appeal, Escobido
argues that his conviction for using a firearm during a drug-
trafficking offense (18 U.S.C. § 924(c)) should be vacated in
light of the Supreme Court’s decision in Bailey v. United States,
516 U.S. 137 (1995). Escobido also asserts ineffective-
assistance-of-counsel because his attorney allegedly failed to
argue that the vehicle Escobido drove, and the gun found therein,
did not belong to Escobido, and that the gun was found the day
*
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that this opinion should not be published and is not precedent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. 98-40049
-2-
after Escobido’s arrest.
We have reviewed the record and briefs submitted by the
parties and find that a jury could have reasonably determined
that Escobido “carried” the firearm. See Muscarello v. United
States, 118 S. Ct. 1911, 1913 (1998); United States v. Brown, 161
F.3d 256, 259 (5th Cir. 1998)(en banc).
Escobido’s ineffective-assistance-of-counsel claim is raised
for the first time in this appeal. This new claim involves
factual issues not presented in the district court and does not
rise to the level of plain error. Thus, we do not consider it.
See United States v. Rocha, 109 F.3d 225, 229 (5th Cir. 1997);
United States v. Alvarado-Saldivar, 62 F.3d 697, 700 (5th Cir.
1995); Robertson v. Plano City of Texas, 70 F.3d 21, 23 (5th Cir.
1995).
AFFIRMED.