United States v. Roy C. Bowens ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-3265
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Roy C. Bowens, * [UNPUBLISHED]
*
Appellant. *
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Submitted: February 5, 1998
Filed: February 10, 1998
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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
In 1994 Roy C. Bowens pleaded guilty to possessing cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1), and to using and carrying a firearm
during a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1). After Bowens
moved under 28 U.S.C. § 2255 to set aside his firearm conviction in light of Bailey v.
United States, 516 U.S. 137, 143-44 (1995) (defining “use” prong of § 924(c)(1)), the
district court1 granted the motion, imposed a two-level enhancement under U.S.
1
The Honorable George F. Gunn, Jr., United States District Judge for the Eastern
District of Missouri.
Sentencing Guidelines Manual § 2D1.1(b)(1) (1997) (add 2 levels if dangerous
weapon, including firearm, was possessed), and resentenced Bowens to 82 months
imprisonment and five years supervised release. Bowens appeals, arguing the court
lacked jurisdiction to resentence him on the unchallenged drug conviction. Because
Bowens&s argument is foreclosed by United States v. Harrison, 113 F.3d 135, 137-38
(8th Cir. 1997), we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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