IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50660
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LISTON RANDOLPH POSEY, II,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-96-CA-132
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July 9, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Liston Randolph Posey, II, federal prisoner # 02528-095,
appeals the district court’s denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his sentence. Because
Posey’s § 2255 motion was filed before the April 24, 1996,
effective date of the Antiterrorism and Effective Death Penalty
Act (AEDPA), the AEDPA does not apply to his appeal. See Lindh
v. Murphy, 521 U.S. 320, 336 (1997); United States v. Carter, 117
F.3d 262, 264 (5th Cir. 1997).
Posey argues that his conviction for using and carrying a
*
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that this opinion should not be published and is not precedent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.
firearm during and in relation to a drug-trafficking offense
under 18 U.S.C. § 924(c)(1) should be vacated in view of Bailey
v. United States, 516 U.S. 137 (1995). The Government presented
the testimony of Charlie Bounds that Posey bartered firearms for
marijuana, which constitutes active employment of a firearm
during a drug-trafficking offense. See Bailey, 516 U.S. at 148;
United States v. Smith, 508 U.S. 223, 228-29 (1993).
Posey argues that 21 U.S.C. § 841 was unconstitutional as
applied to his case because his growing marijuana was a local
crime and the Government did not present any evidence that the
marijuana at issue traveled in interstate commerce. Posey’s
argument is foreclosed by this court’s precedent. See United
States v. Owens, 996 F.2d 59, 61 (5th Cir. 1993).
Posey argues that the Government unconstitutionally singled
him out for federal prosecution but did not prosecute his co-
growers. Because Posey failed to show that the Government acted
in bad faith in prosecuting him, the district court did not err
in holding that he had failed to establish a selective-
prosecution claim. United States v. Sparks, 2 F.3d 574, 580 (5th
Cir. 1993).
Posey argues that the district court had no jurisdiction to
convict him of the instant offense. Because Posey was charged
with federal offenses of manufacturing marijuana plants in
violation of 21 U.S.C. § 841 and using and carrying a firearm
during a drug-trafficking offense in violation of 18 U.S.C.
§ 924(c)(1), and because the offense occurred in Limestone
County, Texas, within the Western District of Texas, the district
No. 98-50660
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court had subject-matter jurisdiction , as well territorial
jurisdiction and proper venue. See United States v. Davis, 666
F.2d 195, 198-99 (5th Cir. 1982).
AFFIRMED.