UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50240
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSE LUIS GRANADOS,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(EP-96-CV-237)
November 20, 1998
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
José Luis Granados, a federal prisoner, appeals the denial of
his motion to vacate, set aside, or correct sentence, pursuant to
28 U.S.C. § 2255. Granados contends that his guilty-plea
conviction for using a firearm in connection with a drug-
trafficking offense is invalid under Bailey v. United States, 516
U.S. 137 (1995).
*
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this opinion should not be published and is not precedent except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.
The government contends that Granados’ Bailey claim is
procedurally barred under United States v. Bousley, 118 S. Ct.
1604, 1610-11(1998). However, because the government did not raise
the procedural bar in the district court, it has been waived. See
United States v. Drobny, 955 F.2d 990, 995 (5th Cir. 1992).
Although Granados contends that he did not actively employ the
firearm and thus did not “use” it within the meaning of Bailey, he
does not contest that he displayed a firearm to an undercover
officer, telling him that he “was ready if something was going to
happen” and that the gun was for protection. Such action is
sufficient to sustain a conviction under the “use” prong of 18
U.S.C. § 924(c). See Bailey, 516 U.S. at 148 (defining use as,
among other things, “brandishing” or “displaying” a firearm).
Granados argues that his act of showing the gun to the
undercover officer was both temporally and physically distant from
the actual drug transaction and his arrest since he stowed the gun
in his car before proceeding to the motel room in which the sale of
drugs was to take place. Thus Granados’ argument is that he did
not use the firearm “during and in relation to” the predicate drug
offenses as is required under § 924(c). This argument fails to
persuade. The record reflects that Granados brought the gun with
him for the purpose of facilitating his possession of the marijuana
and the drug conspiracy. See United States v. Polk, 118 F.3d 286,
293 (5th Cir.), cert. denied, 118 S. Ct. 456 (1997); see also
United States v. Tolliver, 116 F.3d 120, 124-26 (5th Cir. 1997).
Thus he used the gun “during and in relation to” the predicate
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offenses.
The district court’s denial of Granados’ § 2255 motion is
affirmed.
AFFIRMED.
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