UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10229
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
BILLY JACK HAGGARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:92-CR-92-R & 3:96-CV-958-R)
March 10, 1999
Before DAVIS, DUHÉ and PARKER, Circuit Judges.
PER CURIAM:*
Billy Jack Haggard (“Haggard”), federal prisoner number 22880-
007, appeals the denial of his 28 U.S.C. § 2255 motion to vacate.
We affirm.
FACTS AND PREVIOUS PROCEEDINGS
After a 1992 trial, a federal jury convicted Haggard of
conspiracy to possess with intent to distribute amphetamine,
*
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this opinion should not be published and is not precedent except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.
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possession of a controlled substance with intent to distribute and
using and carrying a firearm during a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c)(1). The district court sentenced
Haggard to concurrent 262-month prison terms on the drug-
trafficking counts and a consecutive 60-month term as to the
firearm count, and five years of supervised release.
On direct appeal, this court found that the trial evidence
showed the following. On November 1, 1991, the Dallas police
department received information that amphetamine was being sold out
of room 131 of the Traveler's Inn in Mesquite, Texas. State and
federal law enforcement officers maintained surveillance of the
room from 9:30 a.m. to 2:30 p.m. During the surveillance, Haggard
exited the room and retrieved a container from the trunk of a
Cadillac parked outside. Officers executed a search warrant at
approximately 2:30 p.m. When the officers entered the room, co-
offender Margie Wright was standing directly in front of the door.
Codefendant Michael Wayne McCoy was seated on one of the two beds
in the room; Haggard was seated on the other bed. Wright
immediately pulled a pouch out of her blouse and threw it across
the room. The pouch contained approximately $625. Officer Jones
then secured her to keep her from drawing a weapon. Another
officer secured McCoy, searched him and found three bags containing
a liquid residue, numerous clear plastic bags and $936 in cash.
Other officers secured and searched Haggard and found a silver tube
containing two bags of methamphetamine and $500 in cash. On the
bed where McCoy was seated, a pistol was found sticking out from
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underneath the pillow. When McCoy stood up, then fell back on the
bed, one of the officers saw the butt of the pistol slide out from
underneath the pillow and McCoy's hand almost touched the gun. One
of the officers thought McCoy was reaching for the gun and
therefore grabbed his hand.
On direct appeal, Haggard argued that the evidence was
insufficient to support his firearm conviction, asserting that the
district court erred in instructing the jury regarding
coconspirator liability under Pinkerton v. United States. 328 U.S.
640 (1946). This court affirmed Haggard's convictions and
sentences in an unpublished opinion. United States v. Haggard, 5
F.3d 1494 (5th Cir. 1993)(Table, No. 92-1856).
On April 4, 1996, Haggard filed a motion to vacate his
sentence, pursuant to 28 U.S.C. § 2255. Citing Bailey v. United
States, 516 U.S. 137 (1995), he contended, inter alia, that the
trial evidence was insufficient to support his firearm conviction.
The district court denied the motion and Haggard appealed. For the
first time on appeal, Haggard argues that he was prejudiced by the
trial court's jury instruction on the firearm offense.
DISCUSSION
Haggard contends that the trial evidence was insufficient to
support a finding that either he or codefendant McCoy “used” or
“carried” a firearm during a drug-trafficking offense. He
maintains that neither he nor McCoy “actively employed” the gun, as
required for a conviction under the “use” prong of § 924(c) by
Bailey v. United States, 516 U.S. 137 (1995). Assuming that the
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evidence at Haggard's trial was insufficient to sustain a use
conviction, we nonetheless must affirm under the “carry” prong of
§ 924(c). The evidence is clearly sufficient to support a jury
finding that Haggard or his co-defendant carried the gun into the
hotel room in relation to the drug trafficking crime. See United
States v. Sanders, 157 F.3d 302, 305 (5th Cir. 1998)(Congress used
the word carry in its primary sense, to move while supporting, as
in one's hands or arms.)
Further, the jury instruction, though flawed in its definition
of the “use” prong of § 924(c), does not merit reversal of
Haggard's conviction. We conclude, based on the jury instruction
that encompassed the carry prong of § 924(c) and the circumstances
of this case, that the jury necessarily found beyond a reasonable
doubt the facts to support a conviction for carrying the firearm.
See United States v. Brown, 161 F.3d 256, 259 (5th Cir. 1998). The
error in the jury instruction was therefore harmless. See id.
Haggard next contends that the trial court erred in
instructing the jury that it could apply the conspiracy rule from
Pinkerton v. United States, 328 U.S. 640 (1946), when determining
whether to hold him responsible for the gun. Haggard raised this
identical issue on direct appeal and we affirmed. Because issues
raised and disposed of in a previous appeal are not considered in
§ 2255 motions, United States v. Kalish, 780 F.2d 506, 508 (5th
Cir. 1986), we will not revisit this issue.
Finally, Haggard contends that his indictment charged him with
two separate offenses in a single count: using and carrying a
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firearm. This duplicity claim is patently frivolous. A
“disjunctive statute may be pleaded conjunctively and proved
disjunctively.” United States v. Dickey, 102 F.3d 157, 164 n.8 (5th
Cir. 1996).
For the foregoing reasons, we affirm the district court's
denial of Haggard's § 2255 motion.
AFFIRMED.
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