IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10313
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL WAYNE MCCOY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:97-CV-1021-R
USDC No. 3:92-CR-92-R
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August 25, 1999
Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.
PER CURIAM:*
Michael Wayne McCoy, prisoner number 23007-077, appearing
pro se, appeals the denial of his motion to vacate sentence.
This court granted McCoy a certificate of appealability (COA) on
the sole issue of whether the evidence below was sufficient to
support McCoy’s conviction for violation of 18 U.S.C. § 924(c),
which prohibits using or carrying a firearm during and in
*
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that this opinion should not be published and is not precedent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.
No. 98-10313
-2-
relation to a drug trafficking offense. Finding no error, we
affirm.
The facts of this case were set out in United States v.
Haggard, No. 92-1856 (5th Cir. Sept. 21, 1993), and we do not
repeat them in detail here. In short, McCoy and his co-
defendant, Billy Jack Haggard, were discovered by law enforcement
agents in a motel room engaged in an amphetamine distribution
operation. When an agent approached him, McCoy fell back onto
the bed on which he was seated and, as he did so, a semiautomatic
pistol slid out from underneath a pillow.
We previously upheld McCoy’s conviction, finding that there
was sufficient evidence that McCoy used a firearm during a drug
trafficking offense. United States v. Haggard, 5 F.3d 1494 (5th
Cir. 1993) (Table, No. 92-1856). However, since that decision,
the United States Supreme Court decided Bailey v. United States,
516 U.S. 137 (1995), in which the Court held that mere possession
of a firearm is insufficient to satisfy the “use” prong of
§ 924(c). Id. at 143. Rather, the defendant must actively
employ the weapon. Id. at 144. McCoy argues that the facts of
this case do not support a finding of “use” as defined in Bailey.
Although McCoy may be correct, his appeal is ultimately
without merit. McCoy’s co-defendant, Haggard, recently raised
the same argument which McCoy proposes here. See United States
v. Haggard, No. 97-10229 (5th Cir. Mar. 10, 1999) (Haggard II).
We rejected Haggard’s contention as we found that there was
sufficient evidence to show that either Haggard or McCoy
transported the firearm into the motel room, thereby satisfying
No. 98-10313
-3-
the “carry” prong of § 924(c). See id. at 4. Moreover, the
evidence demonstrates that the weapon was easily accessible to
McCoy. See United States v. Wainuskis, 138 F.3d 183, 187 (5th
Cir. 1998) (in order to satisfy carry prong, weapon must be
transported and within arm’s reach). Thus, the evidence was
sufficient to show that McCoy carried a weapon during the
commission of a drug trafficking offense.
Although McCoy’s COA was granted on the sole issue of
sufficiency of evidence, he also addresses, albeit briefly, the
adequacy of the jury instructions, alleging, in essence, that an
instruction on constructive possession could have confused the
jury with respect to the “use” prong. As we did not grant the
COA on the issue of jury instructions, we need not address this
argument. Further, McCoy did not raise this argument below,
limiting any review to the “plain error” standard. See United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc). Nevertheless, our decision in Haggard II also forecloses
McCoy’s argument, as we found that despite a flawed instruction
on “use,” the jury necessarily found facts to support a
conviction for carrying a firearm. 97-10229 at 4. Thus, any
error was harmless and, therefore, does not meet the higher plain
error standard. Id.
Accordingly, we AFFIRM the district court’s denial of
McCoy’s § 2255 motion.
AFFIRMED.