United States v. Maxwell ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50410
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN PAT MAXWELL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CV-107 (W-91-CR-55-2)
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December 8, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
John Maxwell, Texas inmate # 56084-080, pleaded guilty to
and was convicted of one count of possession of amphetamine with
intent to distribute in violation of 21 U.S.C. § 841(a)(1) and
one count of carrying a firearm during the commission of a
felony, in violation of 18 U.S.C. § 924(c). He seeks a
certificate of appeal (COA) from the dismissal of his petition
for habeas relief filed pursuant to 28 U.S.C. § 2241.
*
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that this opinion should not be published and is not precedent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. 99-50410
-2-
Because the district court ruled on the merits of Maxwell’s
§ 2241 petition, Maxwell’s motion for a COA is DENIED as
unnecessary. Ojo v. INS, 106 F.3d 680, 681 (5th Cir. 1997).
Maxwell’s argument that he cannot be convicted of “using” or
“carrying” a firearm under Bailey v. United States, 516 U.S. 137
(1995), is refuted by the factual basis for his guilty plea which
indicates that Maxwell carried a rifle while he was in possession
of amphetamine. United States v. Hall, 110 F.3d 1155, 1161 (5th
Cir. 1997). The district court’s denial of Maxwell’s § 2241
petition is AFFIRMED.