133 F3d 929 United States v. Altamirano

133 F.3d 929

UNITED STATES of America, Plaintiff-Appellee,
Jose Rafael ALTAMIRANO, Defendant-Appellant.

No. 96-17276.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 15, 1997.**
Decided Dec. 17, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: SNEED, LEAVY and TROTT, Circuit Judges.

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Federal prisoner Jose Rafael Altamirano appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence for his guilty plea conviction for using or carrying a firearm in relation to drug offenses in violation of 18 U.S.C. § 924(c).


Altamirano contends that he did not "use" the firearm pursuant to Bailey v. United States, 116 S.Ct. 501 (1995), and that the caption of the indictment charged him with "use" but not "carrying" the firearm. "[T]he caption is completely surplusage and does not control the body of the indictment." United States v. Pazsint, 703 F.2d 420, 423 (9th Cir.1983). In the body of the indictment, Altamirano was charged with "carrying" the firearm. Moreover, during his change of plea hearing, he admitted to "carrying" the firearm in his belt on his person. Although he did not plead guilty to facts establishing "use," the record conclusively shows that Altamirano admitted facts fulfilling the "carry" prong of Bailey. See Bailey, 116 S.Ct. at 507; United States v. Hernandez, 80 F.3d 1253, 1258 (9th Cir.1996).


Finally, Altamirano was not entitled to an evidentiary hearing where his allegations did not state a claim for relief. See Quintero v. United States, 33 F.3d 1133, 1135 (9th Cir.1994) (per curiam), and his remaining procedural claims were waived for failing to raise them initially before the district court, see United States v. Beierle, 77 F.3d 1199, 1201 (9th Cir.1996).1




The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

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We deem Altamirano's motion to have been filed before the effective date of the enactment of the Antiterrorism and Effective Death Penalty Act