# United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 96-2958

___________ Pedro L. Aguila, * * Appellant, * Appeal from the United States * District Court for the v. * District of Nebraska. * United States of America, * [UNPUBLISHED] * Appellee. *

___________ Submitted: April 28, 1997 Filed: May 16, 1997

___________ Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

___________
PER CURIAM.
Pedro L. Aguila pleaded guilty to conspiring to distribute an d possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846; and to using and carrying firearms t o commit a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)
. Aguila was sentenced to consecutive 60-month prison terms and a total of 5 years supervised release; he did not appeal.
Aguila subsequently filed this 28 U. S.C. § 2255 motion, claiming his section 924(c) conviction and sentence should be vacated in light of Baile y v. United States , 116 S. Ct. 501 (1995).

### The Honorable William G. Cambridge, Chief Judge, Unite d 1 

### States District Court for the District of Nebraska. A certificate of appealability was granted in this case by a 2 

### different panel prior to the court's decision in Hohn v. Unite d States , 99 F.3d 892 (8th Cir. 1996). -2- The dist rict court summarily dismissed the motion with prejudice, an d 1 Aguila appeals.
Upon de novo review, we are persuaded that the motion, files, an d record s of the case conclusively show Aguila is not entitled to relief. 2 See Unite d States v. Duke , 50 F.3d 571, 576 (8th Cir.) (standard o f review), cert. denied , 116 S. Ct. 224 (1995). Although it appears Aguila waived and procedural ly defaulted his Bailey claim by pleading guilty and not appea ling, see Bousley v. Brooks , 97 F.3d 284, 287 (8th Cir. 1996) , petition for cert. filed , ___ U.S.L.W. ___ (U.S. Mar. 18, 1997) (No. 96- 8516), we conclude the claim is, in any event, meritless, as he "used" a firearm. During a drug transaction with Aguila and his co-defendant Mende z within the time frame of the conspiracy, the buy er was shown two guns, and Mendez stated the gun s were there in case anyone tried to "rip off" their drug s. See Bailey , 116 S. Ct. at 508 ("use" of firearm under § 924(c ) in cludes brandishing and displaying firearm, and making reference t o fire armcalculated to change circumstances of predicate drug offense) ; Pin kerton v. United States , 328 U.S. 640, 647-48 (1946) (conspirator i s criminally liable for substantive offense commit ted by another conspirator within scope and in furtherance of conspiracy, unless that offense could not reasonably have been foreseen as necessary or natural consequence of conspiracy); United S tates v. Rodger , 100 F.3d 90, 91 n.2 (8th Cir. 1996) (per curiam) (co-cons pirator theory of liability for § 924(c)(1) offenses remains viable after Bailey ). Accordingly, the judgment of the district court is affirmed. We deny Aguila's motion for expedited appeal.

### -3-

MORRIS SHEPPARD ARNOLD, Circuit Judge.

I would dismiss this case for lack of jurisdiction. See Hohn v
. United States , 99 F.3d 892, 892-93 (8th Cir. 1996) (per curiam). I expres s no view on the merits of the case.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.