OpenJurist

94 F3d 656 United States v. M Aldrete

94 F.3d 656

UNITED STATES of America, Plaintiff-Appellee,
v.
Juan M. ALDRETE, Defendant-Appellant.

No. 96-3113.

United States Court of Appeals, Tenth Circuit.

Aug. 16, 1996.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before SEYMOUR, KELLY and LUCERO, Circuit Judges.

1

ORDER AND JUDGMENT*

2

Appellant Juan Aldrete challenges, under 28 U.S.C. § 2255, his conviction of carrying a firearm in relation to a drug trafficking crime. Relying on Bailey v. United States, 116 S.Ct. 501 (1995), appellant argues that he did not actively employ a firearm with respect to the drug transaction in which he was involved. We affirm.

3

Appellant was indicted and pled guilty to distributing cocaine, in violation of 21 U.S.C. § 841(a)(1), and carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c)(1). Appellant was arrested in the driver's seat of his automobile while attempting to sell about 11 ounces of cocaine to an undercover informant, and a loaded handgun was found wedged in the front seat next to the appellant. Bailey has no bearing on this case because appellant was charged only with the "carrying" prong of section 924(c). From the evidence, it is clear that appellant "carried" a firearm within the meaning of § 924(c). See United States v. Miller, 84 F.3d 1258-60 (10th Cir.1996). Appellant is not entitled to have his sentence vacated under § 2255.

4

AFFIRMED. The mandate shall issue forthwith.

*

The case is unanimously ordered submitted without oral argument pursuant to the applicable rules. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3