IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-41476
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT EDWARD JAMES,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Texas
USDC Nos. 1:97-CV-164 & 1:92-CR-163-1
_________________________________________________________________
January 29, 2001
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Herbert Edward James, federal prisoner # 04134-078, appeals
the district court’s dismissal of his 28 U.S.C. § 2255 motion to
set aside his sentence. Based on the certificate of appealability,
the only issue before the court is whether James received
ineffective assistance of counsel because of his attorney’s failure
to challenge the indictment because two counts (counts 10 and 18)
under 18 U.S.C. § 924(c)(1) were tied to the same drug conspiracy.
*
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this opinion should not be published and is not precedent except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.
Use of more than one gun during a single drug-trafficking
offense does not support multiple counts of conviction under
§ 924(c). United States v. Privette, 947 F.2d 1259, 1262 (5th Cir.
1991). Because the weapons listed in counts 10 and 18 are linked
to the same underlying drug offense--conspiracy to knowingly and
intentionally distribute and possess with intent to distribute
cocaine--sentencing James on both counts violated double jeopardy
principles. See id. Counsel’s failure to raise this challenge
amounts to deficient performance, and the 20-year consecutive
sentence James received evidences prejudice resulting from
counsel’s performance. Accordingly, James has established that he
received ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984). His conviction on count 18 is
VACATED, and the case is REMANDED to the district court for
resentencing.
VACATED and REMANDED.
2