UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-7319

VARIANCE KEITH REYNOLDS,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

N. Carlton Tilley, Jr., District Judge.

(CR-90-54, CA-95-278-6)

Submitted: June 10, 1997

Decided: July 30, 1997

Before HALL, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed in part and vacated and remanded in part by unpublished

per curiam opinion.

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COUNSEL

Variance Keith Reynolds, Appellant Pro Se. Paul Alexander Weinman, Assistant United States Attorney, Greensboro, North Carolina,

for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Variance Reynolds appeals from the district court's order adopting

the magistrate judge's recommendation to deny relief on his 28

U.S.C.A. § 2255 (West 1994 & Supp. 1997) motion in which he

raised three claims: (1) that his attorney was ineffective for failing to

call certain witnesses at trial; (2) that the evidence was insufficient to

support his conviction under 18 U.S.C. § 924(c) (1994); and (3) that

the district court improperly enhanced his sentence for having a leadership role, United States Sentencing Commission, Guidelines

Manual (Nov. 1989). Our review of the record and the district court's

order adopting the magistrate judge's recommendation with respect to

claims (1) and (3) discloses no reversible error. Accordingly, we

affirm the denial of relief as to those claims on the reasoning of the

district court. United States v. Reynolds, Nos. CR-90-54; CA-95-278-

6 (M.D.N.C. July 23, 1996).

Reynolds filed his § 2255 motion on April 20, 1995. After the government had responded, but while the case was still pending with the

magistrate judge, the Supreme Court decided Bailey v. United States,

___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (Nos. 94-7448,

94-7492), which narrowed the definition of "use" of a firearm for purposes of § 924(c). Reynolds wrote to the district court within two

weeks of the Bailey decision, asking the court to consider the case in

support of his second claim.1 The magistrate judge recommended that

Reynolds' claim under Bailey be dismissed for failure to raise it in his

original motion, while noting that Reynolds could file a second

§ 2255 motion to raise this claim. The district court adopted the magistrate judge's recommendation.

Because Reynolds may be precluded from filing a successive

§ 2255 motion,2 we vacate the district court's order with respect to

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1 Originally, Reynolds claimed that the evidence was insufficient to

support his § 924(c) conviction because the Government had not shown

that the weapon was capable of firing.

2 See 28 U.S.C.A. §§ 2241, 2244 (West 1994 & Supp. 1997), amended

by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, 110 Stat. 1214.

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claim (2) and remand with instructions to address Reynolds' claim in

light of the Supreme Court's Bailey decision. We dispense with oral

argument because the facts and legal contentions are adequately

addressed in the materials before the court and argument would not

aid the decisional process.

AFFIRMED IN PART, VACATED AND REMANDED IN PART 

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