IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-20298
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARISTEDE MICHAEL JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CR-176-1
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June 16, 1998
Before DAVIS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Aristede Michael Johnson appeals his conviction under 18
U.S.C. § 924(c), using or carrying a firearm during the
commission of a crime of violence, on the ground that the
district court erred in instructing the jury that armed robbery
is a crime of violence. Because he raises this argument for the
first time on appeal, it is reviewed for plain error. United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994)(en
banc).
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 97-20298
-2-
Johnson has not demonstrated plain error. His argument that
the district court’s instruction invaded the province of the jury
was specifically rejected by this court in United States v.
Credit, 95 F.3d 362, 364 (5th Cir. 1996), cert. denied, 117 S.
Ct. 1008 (1997)(the issue whether robbery is a crime of violence
within the meaning of § 924(c) is a question of law which should
not be submitted to the jury).
Johnson’s appeal is without arguable merit and is therefore
frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983).
Because the appeal is frivolous, it is dismissed. 5TH CIR.
R. 42.2.
APPEAL DISMISSED.