UNITED STATES COURT OF APPEALS
Filed 8/16/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 96-3113
v.
(D.C. No. 95-CV-3540)
(District of Kansas)
JUAN M. ALDRETE,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before SEYMOUR, KELLY and LUCERO, Circuit Judges.
Appellant Juan Aldrete challenges, under 28 U.S.C. § 2255, his conviction of
carrying a firearm in relation to a drug trafficking crime. Relying on Bailey v. United
States, 116 S. Ct. 501 (1995), appellant argues that he did not actively employ a firearm
with respect to the drug transaction in which he was involved. We affirm.
Appellant was indicted and pled guilty to distributing cocaine, in violation of 21
U.S.C. § 841(a)(1), and carrying a firearm in relation to a drug trafficking crime, 18
*
The case is unanimously ordered submitted without oral argument pursuant to the
applicable rules. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. § 924(c)(1). Appellant was arrested in the driver’s seat of his automobile while
attempting to sell about 11 ounces of cocaine to an undercover informant, and a loaded
handgun was found wedged in the front seat next to the appellant. Bailey has no bearing
on this case because appellant was charged only with the “carrying” prong of section
924(c). From the evidence, it is clear that appellant “carried” a firearm within the
meaning of § 924(c). See United States v. Miller, 84 F.3d 1258-60 (10th Cir. 1996).
Appellant is not entitled to have his sentence vacated under § 2255.
AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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