IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30288
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THEODORE HATHEWAY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 96-CA-305"A”
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July 25, 1996
Before DAVIS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
A movant for in forma pauperis (IFP) status on appeal must
show that he is a pauper and that he will present a nonfrivolous
issue on appeal. Carson v. Polley, 689 F.2d 562, 586 (5th Cir.
1982). In the absence of a nonfrivolous issue, the appeal will
be dismissed. 5th Cir. R. 42.2.
Theodore Hatheway, BOP No. 22100-034, challenges the factual
basis supporting his guilty-plea conviction for using and
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 96-30288
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carrying a firearm in connection with a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1). Hatheway contends that he
did not use any firearm as defined by Bailey v. United States,
116 S. Ct. 501 (1995), and requests that Bailey be applied to his
case to invalidate his conviction.
The record demonstrates that Hatheway did use firearms
within the context defined by Bailey, as he openly displayed the
guns in his safe during a drug transaction, such that they were
an “obvious and forceful presence.” Id. at 508. Hatheway does
not present a nonfrivolous issue for appeal. See Howard v. King,
707 F.2d 215, 219-20 (5th Cir. 1983). IFP is DENIED, and
Hatheway’s appeal is DISMISSED as frivolous. See 5th Cir. 42.2.