* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-40981

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARNALDO BAKER,

Defendant-Appellant.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:96-CV-14

- - - - - - - - - -

December 30, 1998

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Arnaldo Baker, federal prisoner # 08434-021, appeals the

district court’s denial of his motion to vacate, set aside, or

correct his sentence pursuant to 28 U.S.C. § 2255. Baker’s

motion for leave to file a reply brief out of time is GRANTED.

Baker argues that his counsel was ineffective in failing to

advise him of the mandatory minimum five-year sentence for a

conviction under 18 U.S.C. § 924(c). The record establishes that

Baker was advised by the district court and his counsel that the 
No. 97-40981 

-2-

mandatory minimum sentence for a violation of § 924(c) was five

years. 

Baker argues that his counsel was ineffective in failing to

raise an affirmative defense that he lawfully possessed the

firearm while traveling under Texas Penal Code Ann. § 46.03; he

relies on United States v. Prieto-Tejas, 779 F.2d 1098 (5th Cir.

1986). Baker’s reliance on Prieto-Tejas is misplaced as it

involved a conviction under 18 U.S.C. § 924(c)(2) which at the

time of Prieto-Tejas’s conviction had different elements than

§ 924(c)(1). Baker was convicted of violating § 924(c)(1), using

and carrying a firearm during and in relation to a drugtrafficking offense. Section 46.03 of the Texas Penal Code does

not provide a defense to § 924(c)(1).

Baker argues that he is actually innocent of violating

§ 924(c). The factual basis of Baker’s guilty plea establishes

that Baker knowingly carried the firearm in his vehicle during

and in relation to a drug-trafficking offense. The firearm

carried in a vehicle need not be immediately accessible to be

carried within the meaning of § 924(c). See United States v.

Muscarello, 106 F.3d 636, 638 (5th Cir. 1997), aff’d, 118 S. Ct.

1911 (1998); United States v. Harlan, 130 F.3d 1152, 1153-54 (5th

Cir. 1997).

For the first time on appeal, Baker argues that the

Government improperly amended the indictment to allege a

violation of § 924(c)(1). The record shows that Baker was

indicted for a violation of § 924(c)(1) and Baker agreed to plead
No. 97-40981 

-3-

guilty to a violation of § 924(c)(1) in the plea agreement. The

Government did not amend the indictment in this case. Baker has

not shown plain error as to this claim. See Douglass v. United 

Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)

(en banc).

For the first time on appeal, Baker argues that the

Government breached the plea agreement by failing to dismiss

counts one and two of the indictment. The record shows that the

Government moved to dismiss counts one and two of the indictment

at the sentencing hearing and the district court granted the

motion as to Baker.

Baker also challenges the constitutionality of the stop and

search of his vehicle. This court addressed this issue in

Baker’s direct appeal and held that the stop and search of his

vehicle was reasonable under the Fourth Amendment. United States

v. Baker, 47 F.3d 691 (5th Cir. 1995). Because Baker raised this

issue on direct appeal, he may not raise it again in a § 2255

motion. See United States v. Kalish, 780 F.2d 506, 508 (5th Cir.

1986).

AFFIRMED; MOTION FOR LEAVE TO FILE REPLY BRIEF OUT OF TIME

GRANTED.