IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-60545
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CALVIN PARNELL,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(3:96-CV-97-D)
_________________________________________________________________
February 27, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Calvin Parnell appeals from the denial of his successive 28
U.S.C. § 2255. Parnell argues that the evidence was insufficient
to show that he actively used a firearm under 18 U.S.C. § 924(c)
in light of United States v. Bailey, 116 S. Ct. 501 (1995), and
that his firearm conviction must be reversed because the jury was
instructed as to the liberal pre-Bailey definition of use, 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that this opinion should not be published and is not precedent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.
they were not instructed as to the meaning of “carrying” under § 924(c).
To the extent that Parnell is required to file a certificate
of appealability (COA) in order to appeal the district court’s
order, we conclude that Parnell has not made a substantial
showing of the denial of a constitutional right. See 28 U.S.C.
§ 2253(c)(2). Without deciding whether a COA is required, we
conclude that the evidence is sufficient to prove that Parnell
both actively used and carried the firearm under Bailey: Parnell
carried the rifle to the motel; it was not concealed in his
clothing but displayed because the surveillance officers saw the
weapon. See Bailey, 116 S. Ct. at 508. Because the trial
evidence demonstrated that Parnell used the rifle as defined by
Bailey and also carried it, any error from the giving of pre-
Bailey jury instructions did not seriously affect the fairness,
integrity, or public reputation of judicial proceeding, or amount
to a due process violation. United States v. Anderson, 987 F.2d
251, 259 (5th Cir.), cert. denied, 510 U.S. 853 (1993).
AFFIRMED. COA DENIED.
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