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 1998-03

United States v. Baker ( 1998 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40676
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES JEROME BAKER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(1:96-CV-82)
March 23, 1998
Before JOHNSON, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Federal Prisoner Charles Jerome Baker appeals the district
court’s denial of his motion to vacate filed pursuant to
    28 U.S.C. § 2255
    .   Specifically, Baker argues that the evidence produced at
trial was insufficient to support his conviction and that the trial
court’s jury instructions were inadequate.
Baker first argues that the evidence presented at trial was
insufficient to support his conviction for carrying a firearm in
violation of
    42 U.S.C. § 924
    (c).       This Court examined Baker’s
*
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this opinion should not be published and is not precedent except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.
evidentiary complaints and concluded sufficient evidentiary support
existed to support his conviction.       See United States v. Baker, No.
92-4845 (5th Cir. May 31, 1993).          However, because the Supreme
Court examined the standards for evidentiary sufficiency under §
924(c) in Bailey v. United States,
    116 S.Ct. 501
     (1995), Baker
claims that this Court must reconsider its holding.
Though   Bailey   did   interpret    portions   of   §   924(c),   the
“carrying” prong of the statute, the prong under which Baker was
convicted, was not affected in factual settings where the gun in
question is possessed in a motor vehicle.             United States v.
Muscarello,
    106 F.3d 636
    , 638 (5th Cir. 1997).        Because Baker was
indicted and convicted under the “carrying” prong of § 924(c)(1)
for possessing a gun in a motor vehicle, there is no need to
revisit the previous determination of evidentiary sufficiency.
Accordingly, the Court need not entertain this issue, for “issues
raised and disposed of in a previous appeal from an original
judgment of conviction are not considered in § 2255 motions.”
United States v. Kalish,
    780 F.2d 506
    , 508 (5th Cir. 1986).
Next, Baker contends that the trial court’s jury instructions
were inadequate in light of Bailey.         Because this issue was not
raised in the district court, the Court’s review will be for plain
error only.   Highlands Ins. Co. v. National Union Fire Ins. Co.,
    27 F.3d 1027
    , 1031-32 (5th Cir. 1994).       After a careful review of the
record, the arguments, and the controlling authorities, the Court
2
holds that no reversible error was committed.1
Therefore, for the foregoing reasons, the judgment of the
district court is AFFIRMED.
1
Under Federal Criminal Rule of Procedure 52(b), this Court
may correct forfeited errors only when an appellant shows that
there is an error, the error is clear or obvious, and the error
affects his substantial rights. United States v. Calverly,
    37 F.3d 160
    , 162-64 (5th Cir. 1994)(en banc), cert. denied,
    513 U.S. 1196
    (1995).   Even if these factors are established, the Court may
decline to exercise its discretion and correct the error unless the
error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. McDowell,
    109 F.3d 214
    , 216 (5th Cir. 1997).
3