* 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opinion should not be published and is not precedent except under the limited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. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 95-40775

(Summary Calendar)

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAUL MATA, JR.,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(C-94-CV-300)

June 27, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Raul Mata, Jr., appeals from the district court’s denial of

his motion to vacate, set aside, or correct his sentence pursuant

to 28 U.S.C. § 2255. Mata argues that the record is insufficient

to support his conviction under 18 U.S.C. § 924(c)(1). Mata

further argues that he was rendered ineffective assistance of
2 The Supreme Court decided Bailey after the district court rejected

Mata’s § 2255 motion but prior to this appeal. We reject Mata’s claim without

deciding whether Bailey should be applied to § 2255 motions filed prior to the

decision in Bailey. 

3 Mata admitted during his plea that he carried the gun to protect his

shipment of drugs, and the gun was found behind the driver’s seat in the sleeper

compartment of the truck. 

-2-

counsel because his counsel coerced him into entering a guilty

plea, failed to research and mount a proper defense, failed to

object to the alleged illegal search of his truck and the seizure

of the firearm, and failed to object to the Government’s

misstatements during the guilty plea regarding when the firearm was

found. Finally, Mata argues that the district court erred in

failing to conduct an evidentiary hearing. 

Mata’s argument that the evidence was insufficient to support

his conviction for “using” or “carrying” a firearm in violation of

§ 924(c) is foreclosed by his guilty plea. United States v. Broce,

488 U.S. 563, 569, 109 S. Ct. 757, 762, 102 L. Ed. 2d 927 (1989).

Insofar as Mata is challenging the factual basis for his plea in

light of the recent Supreme Court opinion in United States v.

Bailey, ___ U.S. ___, 116 S. Ct. 501, ___ L. Ed. 2d ___ (1995), we

hold that Bailey does not undermine Mata’s plea.2 Mata pleaded

guilty to both “using and carrying” a firearm in violation of

§ 924(c). The decision in Bailey only affected the definition of

“use” under the statute. See id. at 509. The facts underlying

Mata’s plea still support his conviction for carrying a firearm in

relation to a drug offense under § 924(c).3 See United States v.
-3-

Fike, No. 93-1797, 1996 WL 229346, at *12 (5th Cir. May 7, 1996)

(discussing 924(c) and holding that by “placing a gun under the

driver’s seat of a car, then driving the car to another location,

one has carried the gun”).

Mata’s remaining arguments are without merit. The district

court did not abuse its discretion in failing to conduct an

evidentiary hearing on Mata’s claims. See United States v.

Drummond, 910 F.2d 284, 285 (5th Cir. 1990) (holding that

evidentiary hearing is not necessary where claims can be resolved

on the record and files before the district court). The district

court did not err in determining that Mata’s guilty plea was not

coerced. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S. Ct.

1621, 1629, 52 L. Ed. 2d 136 (1977) (holding that statements in

open court carry strong presumption of truth, and may not be

undermined by subsequent unsupported allegations). Mata’s counsel

was not ineffective for failing to research or present a defense to

his § 924(c) charge. See Strickland v. Washington, 466 U.S. 668,

690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674 (1984) (holding that

to support a claim of ineffective assistance, defendant must show

that counsel’s performance was “outside the wide range of

professionally competent assistance”). Mata’s counsel was not

ineffective for failing to object to the introduction of the

firearm because the search did not violate the Fourth Amendment.

See United States v. Loaiza-Marin, 832 F.2d 867, 868-69 (5th Cir.
-4-

1987) (upholding inventory search which resulted in the discovery

of contraband). Finally, Mata has failed to establish that

counsel’s failure to object to the Government’s misstatements

during the guilty plea was in any way prejudicial. See Strickland,

466 U.S. at 697; 104 S. Ct. at 2069-70 (requiring the defendant to

demonstrate “prejudice” to succeed on a claim of ineffective

assistance). 

We AFFIRM the district court’s denial of Mata’s 28 U.S.C.

§ 2255 motion. Having done so, Mata’s motion for bail pending

appeal is DENIED.