Mohler v. Gunja ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WARD EVERETTE MOHLER, 
Petitioner-Appellant,
v.  No. 03-6097
J. E. GUNJA, Warden,
Respondent-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(CA-01-1863-DKC)
Submitted: May 12, 2003
Decided: June 2, 2003
Before WILKINS, Chief Judge, and TRAXLER and
KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Ward Everette Mohler, Appellant Pro Se. Donald Ray Wolthuis,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Vir-
ginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 MOHLER v. GUNJA
OPINION
PER CURIAM:
Ward Everette Mohler was convicted in 1991 of seventeen counts
of drug and firearm offenses. Following his appeal and postconviction
proceeding, he sought to raise a claim under Bailey v. United States,
516 U.S. 137 (1995). In 2002, this court remanded a habeas corpus
petition, filed under 28 U.S.C. § 2241 (2000), which the district court
had dismissed for lack of jurisdiction. We held that, under In re
Jones, 226 F.3d 328 (4th Cir. 2000), the district court had jurisdiction
to review Mohler’s Bailey claim. Mohler v. Gunja, No. 01-7606, 2002
WL 312879 (4th Cir. Feb. 28, 2002) (unpublished).
On remand, the district court concluded that the instruction given
at Mohler’s trial, to which no objection was made, was not in compli-
ance with the Supreme Court’s later holding in Bailey. The court
ruled, however, that the evidence at trial was sufficient to support the
18 U.S.C. § 924(c) (2000) convictions. We agree with the district
court that Mohler did not sustain his burden of proving, under the
plain error standard of United States v. Olano, 507 U.S. 725 (1993),
that the error affected his substantial rights. See United States v. Wil-
liams, 152 F.3d 294, 300 (4th Cir. 1998) (applying plain error stan-
dard in Bailey context). In view of the evidence of Mohler’s display
and discussion of the weapons, he cannot "show that the jury actually
convicted him based upon an erroneous understanding of the term
‘use.’" United States v. Hastings, 134 F.3d 235, 243 (4th Cir. 1998).
Therefore, we affirm the district court’s decision on the Bailey
issue. Other issues Mohler attempts to raise were not properly before
the district court, and we decline to rule on them. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED