*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opinion should not be published and is not precedent except under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. 97-10919

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEE WAYNE HAMMONDS,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:96-CV-3309-P

 

May 5, 1999

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

PER CURIAM:*

Lee Wayne Hammonds, federal inmate #24278-077, appeals the

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

correct sentence pursuant to 28 U.S.C. § 2255. Hammonds contends

that the trial evidence was insufficient to support his conviction

for using and carrying a firearm during a drug-trafficking crime,

in violation of 18 U.S.C. § 924(c)(1), in light of the Supreme

Court’s subsequent decision in Bailey v. United States, 516 U.S.
 

1While the instruction on “use” was not as complete as would

be desirable, it is not clear that it was inconsistent with Bailey.

The jury was not instructed that “mere possession” of a firearm was

sufficient; and, the jury was instructed that it had to find that

“the firearm played a role in or facilitated the commission of a

drug offense, . . . that the firearm was an integral part of the

drug offense charged.” See United States v. Logan, 135 F.3d 353,

2

137 (1995). Hammonds also contends that the district court’s

instructions to the jury on the section 924(c)(1) charge were

erroneous in light of Bailey. A judge of this Court granted a

certificate of appealability limited to those two issues.

The trial evidence, including Hammonds’ testimony, was

sufficient to convict Hammonds of “use” of a firearm. See Bailey,

516 U.S. at 148 (“use” includes a display of weapons; and, “the

silent but obvious and forceful presence of a gun on a table can be

a ‘use’”); see United States v. Wainuskis, 138 F.3d 183, 188 & n.18

(5th Cir. 1998) (open display of weapon on stool within arm’s reach

satisfies the Bailey “use” requirement under section 924(c)(1)).

Because Hammonds did not challenge the jury instructions at

trial or on direct appeal, to be entitled to section 2255 relief he

must show that the erroneous jury instruction “probably resulted in

the conviction of one who is actually innocent” to overcome the

procedural bar. United States v. Sorrells, 145 F.3d 744, 750 (5th

Cir. 1998) (citation and internal quotations omitted). Hammonds

cannot demonstrate actual innocence because there is sufficient

evidence that his conduct constituted “use” of a firearm under

Bailey, and Hammonds has not shown it to be probable that had a

Bailey consistent “use” instruction been given no reasonable juror

would have convicted. See Sorrells at 750, 741, 754-55.1
355-56 (5th Cir. 1998) (the instructions in Logan, however, unlike

those here, expressly told the jury that “mere possession of the

firearm was not enough.” Id. at 356). We need not (and do not)

decide whether the “use” instruction given met minimum Bailey

standards because Hammonds has not shown it probable that but for

such putative deficiency no reasonable juror would have convicted.

3

The district court correctly determined that Hammonds was not

entitled to section 2255 relief.

AFFIRMED