UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-60064
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN H. O’BRYANT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
( 1:95-CR-33-D )
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August 14, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
John H. O’Bryant appeals his jury conviction and sentence for
possession of methamphetamine with intent to distribute under 21
U.S.C. § 841(a)(1) & (b)(1)(C), possession of marijuana with intent
to distribute under § 841(a)(1) & (b)(1)(D), and using and carrying
a firearm during and in relation to a drug-trafficking offense
under § 924(c)(1).
*
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that this opinion should not be published and is not precedent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.
O’Bryant contends that the district court abused its
discretion in refusing to allow him to present the testimony of a
Sheriff and an attorney who represented O’Bryant in prior state
drug cases, to support the theory that the state and federal
officers planted the drugs. Of course, review of a district
court’s evidentiary ruling is “highly deferential”, and we will
generally reverse only for an abuse of discretion. United States
v. Williams, 993 F.2d 451, 457 (5th Cir. 1993). The court did not
abuse its discretion in concluding that the witnesses’ testimony,
which concerned only the 1992 state drug case against O’Bryant, was
not relevant to the issues of O’Bryant’s guilt as to the charges in
the instant case. Accordingly, we AFFIRM O’Bryant’s convictions
under § 841(a)(1), (b)(1)(C) & (b)(1)(D).
O’Bryant contends that his conviction under § 924(c)(1) for
using and carrying a firearm in relation to a drug-trafficking
offense should be reversed based on the Supreme Court’s recent
decision in United States v. Bailey, ___ U.S. ___, 116 S. Ct. 501
(1995). The Government counters that, although the evidence may be
insufficient post-Bailey to support the “use” prong of § 924(c)(1),
it is sufficient to support the “carry” prong.
But, because the jury may have rendered the guilty verdict
based on the pre-Bailey instructions concerning the “use” prong of
§ 924(c)(1), we REVERSE O’Bryant’s § 924(c)(1) conviction and
2
REMAND for a retrial based on the “carry” prong. See United States
v. Fike, 82 F.3d 1315, 1327-28 (5th Cir. 1996).
AFFIRMED IN PART and REVERSED and REMANDED IN PART
3