98-4076 | 8th Cir. | Jun 9, 1999
Before HANSEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________ PER CURIAM. A jury found Thomas McGhee guilty of a drug trafficking offense, and of using or carrying a firearm during and in relation to a drug trafficking crime. The trial evidence showed McGhee, who was carrying a significant amount of cocaine base, drew a loaded firearm from his waistband while being pursued by police. We affirmed McGhee's conviction on direct appeal. See United States v. Sparks, 949 F.2d 1023" date_filed="1992-01-07" court="8th Cir." case_name="United States v. Derrell Sparks, United States of America v. Thomas McGhee">949 F.2d 1023, 1024-28 (8th Cir. 1991), cert. denied, 504 U.S. 927" date_filed="1992-05-18" court="SCOTUS" case_name="Bailey v. United States">504 U.S. 927 (1992). McGhee then brought this 28 U.S.C. § 2255 proceeding, contending the evidence was insufficient to convict him of using a firearm, in light of Bailey v. United States, 516 U.S. 137" date_filed="1995-12-06" court="SCOTUS" case_name="Bailey v. United States">516 U.S. 137 (1995).
Having reviewed the record and the parties' briefs, we conclude the district court correctly denied McGhee's motion. See Swedzinski v. United States, 160 F.3d 498" date_filed="1999-02-01" court="8th Cir." case_name="Mark Edward Swedzinski v. United States">160 F.3d 498, 501 (8th Cir. 1998) (affirming denial of § 2255 motion where jury instruction on "use" was contrary to Bailey, but jury was given option of finding "carry" violation; holding movant must show that jury instruction worked actual and substantial disadvantage amounting to constitutional error, and that properly instructed jury would have acquitted movant). Accordingly, we affirm the judgment of the district court.
A true copy. Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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