IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30665
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEITH FENNIDY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 96-CV-1028
USDC No. 92-CR-10-H
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December 9, 1999
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Keith Fennidy, a federal prisoner (# 22810-034), appeals
from the district court’s judgment denying his 28 U.S.C. § 2255
motion to set aside his conviction.
Fennidy contends that his guilty-plea conviction for using a
firearm during a drug-trafficking crime, 18 U.S.C. § 924(c),
should be vacated in light of the Supreme Court’s decision in
Bailey v. United States, 516 U.S. 137 (1995). Fennidy’s pro se
argument, liberally construed, is that the factual basis
*
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that this opinion should not be published and is not precedent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. 96-30665
-2-
presented by the Government in support of his guilty plea does
not support his conviction under the “use” prong of § 924(c) as
defined in Bailey. The plea colloquy reflects that the
Government stated only that a semiautomatic pistol “was located
in the passenger compartment” of the car in which Fennidy and his
codefendant, William Carter, were riding.
Codefendant Carter raised nearly identical contentions in
his own § 2255 motion. In addressing Carter’s appeal from the
denial of § 2255 relief, this court reasoned that the “mere
location [of the gun] inside an automobile does not, without
more, equate with the `use’ of a firearm in relation to a drug
trafficking offense.” United States v. Carter, 117 F.3d 262, 265
(5th Cir. 1997). The court reversed Carter’s contention, vacated
his sentence, and remanded for further proceedings.
Fennidy and codefendant Carter pleaded guilty during the
same plea proceeding. For reasons identical to those set forth
in Carter, we conclude that there was not a factual basis for
Fennidy’s guilty plea to the § 924(c) offense. Accordingly, the
judgment of the district court is REVERSED, Fennidy’s § 924(c)
conviction is REVERSED, his sentence is VACATED, and this case is
REMANDED for further proceedings.
REVERSED, VACATED, AND REMANDED.