UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-6886

MALCOLM BRIGHT,

Defendant-Appellant.

Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge.

(CR-92-169, CA-96-131)

Submitted: October 10, 1997

Decided: November 17, 1997

Before WIDENER and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Malcolm Bright, Appellant Pro Se. Jane Barrett Taylor, OFFICE OF

THE UNITED STATES ATTORNEY, Columbia, South Carolina, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Malcolm Bright appeals the district court's orders denying his

motion filed pursuant to 28 U.S.C. § 2255 (1994) (current version at

28 U.S.C.A. § 2255 (West 1994 & Supp. 1997)) and his motion for

reconsideration. We affirm.

Bright was convicted of using or carrying a firearm during and in

relation to a drug trafficking offense, in violation of 18 U.S.C.

§ 924(c) (1994). The facts giving rise to the conviction are that in

1991 an informant told police in Columbia, South Carolina, that

Bright was dealing crack cocaine out of his home. An undercover

officer made four separate purchases of crack from Bright. On the last

occasion, two undercover officers entered Bright's home and purchased seven rocks of crack for $150. The officers observed a sawedoff shotgun between the armrest and cushion of the chair in which

Bright was seated. When one officer complained about the price of

the crack, Bright lowered his hand as if to reach for the gun and did

not raise it again until the price dispute was settled.

Following his conviction, Bright was sentenced to 120 months in

prison. We affirmed his conviction. He subsequently filed the subject

§ 2255 motion.

Bright's contentions warrant little discussion. He complains that

the district judge instructed the jury that the underlying drug trafficking offense had been proven. But the record reveals that the parties

had stipulated to this prior to trial because Bright stood convicted of

the offense in state court. Additionally, although Bright claims that an

informant placed the shotgun in the chair in an effort to "set him up,"

he offers nothing to support his assertion that he was entrapped into

committing the crime.

Bright is correct that the indictment charged that he used "and" carried the firearm but the jury was instructed that it could convict if it

found that he had used "or" carried the firearm. This discrepancy does

not merit relief, however. When, as here, a statute is worded in the

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disjunctive, federal pleading requires that an indictment charge in the

conjunctive to inform the accused fully of the charges, and it is appropriate for the court to instruct the jury in the disjunctive. See United

States v. Klein, 850 F.2d 404, 406 (8th Cir. 1988); see also Turner v.

United States, 396 U.S. 398, 420 (1970); United States v. Champion,

387 F.2d 561, 563 (4th Cir. 1967).

Bright maintains that the evidence was insufficient to convict him

and that the district court's instruction on use of a firearm was erroneous. Although the instruction was incorrect under Bailey v. United

States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-

7448, 94-7492), Bright was not prejudiced by the error, see United

States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994), cert. denied, ___

U.S. ___, 64 U.S.L.W. 3708 (U.S. Apr. 22, 1996) (No. 95-8310). His

conduct clearly satisfies the Bailey definition of use because he brandished the gun, menacing the officers with it during the price dispute

over the crack. As the instruction on use was not prejudicial, we need

not address Bright's claim that the instruction on carry under § 924(c)

also was erroneous. Finally, as the drug trafficking crime was established and Bright used the firearm during that offense, the evidence

was sufficient to convict him under § 924(c).

We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and

argument would not aid the decisional process. We deny the motion

to expedite as moot.

AFFIRMED

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