UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30437
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOSEPH MELBERT,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Louisiana
(94-CR-20069)
May 30, 1996
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:*
Joseph Melbert (Melbert), Harry Randolph, Louis Melbert and
Pamela Griffin were charged in a nine count superseding indictment.
Melbert was charged under counts 1-7 and count 9. Count 2 was
dismissed on the government's motion. The court granted Melbert's
motion for judgment of acquittal after the government's case in
chief on counts 1, 3 and 4. The jury found Melbert not guilty on
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
count 5, but the jury found Melbert guilty on count 6 (possession
with the intent to distribute powered cocaine on or about October
4, 1994), count 7 (possession with intent to distribute cocaine
base, crack, on or about October 4, 1994), and count 9 (using and
carrying a firearm in connection with a drug trafficking offense).
Melbert timely appeals.
On appeal, Melbert moved to file a supplemental brief in order
to assert his right to the benefits of the decision of the United
States Supreme Court in Bailey v. United States, 116 S. Ct. 501
(1995), which was decided during appeal. The government concedes
that the facts and circumstances involved in Melbert's conviction
under count 9 for a violation of 18 U.S.C. § 924(c)(1) would not
support a determination that he used or carried a weapon during a
drug offense as now defined in Bailey. Accordingly, we reverse
Melbert's conviction on count 9 and vacate his sentence thereon.
We deny the motion to file a supplemental brief as moot.
Melbert also claims error on the part of the trial court in
failing to grant his motion to suppress certain evidence and
various sentencing errors. We have carefully reviewed the briefs,
the reply briefs, the record excerpts and relevant portions of the
record. We are satisfied that the findings of fact and conclusions
of law made by the trial court at the suppression hearing were not
clearly erroneous and that the findings of relevant conduct and
quantities of drugs involved were amply supported by the evidence
before the trial court. Accordingly, Melbert's convictions and
sentence on counts 6 and 7 are affirmed.
2
As to count 9, conviction REVERSED and sentence VACATED. As
to counts 6 and 7, conviction and sentence AFFIRMED.
3