* 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

FOR THE FIFTH CIRCUIT

No. 96-30004

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERBERT LEE HUGHES,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Louisiana

(CV-93-1457)

September 3, 1996

Before POLITZ, Chief Judge, DAVIS and DENNIS, Circuit Judges.

POLITZ, Chief Judge: *

Herbert Hughes appeals the rejection of his 28 U.S.C. § 2255 motion for

relief from his conviction and sentence fo r possession with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 18 U.S.C. § 2;1 1996 WL 340815.

2 _____ U.S. _____, 116 S.Ct. 501 (1995).

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

§ 924(c); and for being a convicted felon in possession of a firearm, in violation of

18 U.S.C. §§ 922(g)(1) and 924(a)(2).

Proc eeding p ro se and in forma pauperis Hughes claims a double jeopardy

violation because of a subsequent civil forfeiture; seeks the vacating of his

se n tences because of ineffective assistance of counsel; error in the sentencing

cal culations; a wrongful charge of carrying a weapon in relation to a drug

transaction; an erron eous consideration of a prior conviction for which a pardon

had issued; and a selective prosecution. Hughes sought to supplement the record

by attaching certain exhibits to his brief; the government moves to strike same.

The double jeopardy complaint is foreclosed by the recent Supreme Court

decision in United States v. Ursery. 1 The complaint under section 924(c),

however, has merit. The government candidly concedes that the sentence imposed

under Count Two should be vacated and the matter should be remanded for

consideration under the intervening decision in Bailey v. Unit ed States

. 2 This

convictio n is, accordingly, vacated; on remand the district court must determine

whether Hughes was “carrying” the weapon under section 924(c) as explicated by3 See United States v. Vaughan

, 955 F.2d 367 (5th Cir. 1992); United States v. Capua

,

656 F.2d 1033 (5th Cir. 1981).

4 United States v. Garth

, 773 F.2d 1469, 1476 (5th Cir. 1985), cert

. denied

, 476 U.S.

1140 (1986).

3 the Supreme Court.

Hughes advances several challenges to the district court’s application of the

sentencing guidelines. These issues are not cognizable in a section 2255

proceeding but should have been raised on direct appeal. 3

Nor do we find any merit in Hughes’ claim of selective prosecution. An

essential requirement of such a challenge is a showing that the “ prosecution has

been invidious or in bad faith in that it rests upon such imper missible

considerations as race, religion, or the desire to prevent his exer c ise of

constitutional rights.” 4 No such allegations were made; no such proof was

advanced.

Nor do we find any merit in the claims of ineffective assistance of counsel.

Hughes must affirmatively prove prejudic e. In light of today’s holdings on his

several challenges this cannot be done herein.

Finally, in light of today’s disposition, the gov ernment’s motion to strike

certain documents from the record is moot and it is, accordingly, denied.

The judgment app ealed is AFFIRMED IN PART, VACATED IN PART, and4

REMANDED.