IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-10919
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEE WAYNE HAMMONDS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:96-CV-3309-P
May 5, 1999
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.
PER CURIAM:*
Lee Wayne Hammonds, federal inmate #24278-077, appeals the
district court’s denial of his motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. Hammonds contends
that the trial evidence was insufficient to support his conviction
for using and carrying a firearm during a drug-trafficking crime,
in violation of 18 U.S.C. § 924(c)(1), in light of the Supreme
Court’s subsequent decision in Bailey v. United States, 516 U.S.
*
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opinion should not be published and is not precedent except under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.
137 (1995). Hammonds also contends that the district court’s
instructions to the jury on the section 924(c)(1) charge were
erroneous in light of Bailey. A judge of this Court granted a
certificate of appealability limited to those two issues.
The trial evidence, including Hammonds’ testimony, was
sufficient to convict Hammonds of “use” of a firearm. See Bailey,
516 U.S. at 148 (“use” includes a display of weapons; and, “the
silent but obvious and forceful presence of a gun on a table can be
a ‘use’”); see United States v. Wainuskis, 138 F.3d 183, 188 & n.18
(5th Cir. 1998) (open display of weapon on stool within arm’s reach
satisfies the Bailey “use” requirement under section 924(c)(1)).
Because Hammonds did not challenge the jury instructions at
trial or on direct appeal, to be entitled to section 2255 relief he
must show that the erroneous jury instruction “probably resulted in
the conviction of one who is actually innocent” to overcome the
procedural bar. United States v. Sorrells, 145 F.3d 744, 750 (5th
Cir. 1998) (citation and internal quotations omitted). Hammonds
cannot demonstrate actual innocence because there is sufficient
evidence that his conduct constituted “use” of a firearm under
Bailey, and Hammonds has not shown it to be probable that had a
Bailey consistent “use” instruction been given no reasonable juror
would have convicted. See Sorrells at 750, 741, 754-55.1
1
While the instruction on “use” was not as complete as would
be desirable, it is not clear that it was inconsistent with Bailey.
The jury was not instructed that “mere possession” of a firearm was
sufficient; and, the jury was instructed that it had to find that
“the firearm played a role in or facilitated the commission of a
drug offense, . . . that the firearm was an integral part of the
drug offense charged.” See United States v. Logan, 135 F.3d 353,
2
The district court correctly determined that Hammonds was not
entitled to section 2255 relief.
AFFIRMED
355-56 (5th Cir. 1998) (the instructions in Logan, however, unlike
those here, expressly told the jury that “mere possession of the
firearm was not enough.” Id. at 356). We need not (and do not)
decide whether the “use” instruction given met minimum Bailey
standards because Hammonds has not shown it probable that but for
such putative deficiency no reasonable juror would have convicted.
3