Billy Darrell Thomas v. United States ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-2982
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Billy Darrell Thomas, *
*
Movant/Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
United States of America, *
*
Respondent/Appellee. * [PUBLISHED]
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Submitted: April 18, 1997
Filed: April 25, 1997
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Before RICHARD S. ARNOLD, Chief Judge, FAGG and MURPHY, Circuit Judges.
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PER CURIAM.
Billy Darrell Thomas pled guilty to four counts of a five count
indictment involving drugs and guns. One of the counts of conviction was
for using or carrying a gun in relation to a drug offense. 18 U.S.C. §
924(c). After his convictions, but before his sentencing hearing, the
Supreme Court decided Bailey v. United States, 116 S. Ct. 501 (1995).
Thomas then filed a motion to withdraw his guilty plea for violating §
924(c). The motion was denied and Thomas did not appeal. Later he brought
a 28 U.S.C. § 2255 motion claiming the evidence was insufficient to support
a conviction, his counsel was ineffective, and the sentencing court erred
by denying his motion to withdraw his guilty plea to the
§ 924(c) charge. Thomas now appeals from the denial of this motion.
Since Thomas did not file a direct appeal, his motion is procedurally
barred unless he can show cause excusing his default and prejudice
resulting from the errors. See Bousley v. Brooks, 97 F.3d 284, 287 (8th
Cir. 1996). In his plea agreement, Thomas admitted that he was engaged in
drug trafficking and that along with methamphetamine, he carried a Colt .38
revolver "because he wanted to protect himself from being 'ripped off by
bandits who wanted his methamphetamine.'" At the hearing in which Thomas
sought to withdraw his plea to the § 924(c) charge, he admitted that he
possessed a firearm while he was carrying drugs he intended to distribute.
This is sufficient evidence to support a conviction under § 924(c). Bailey
examined the use prong of § 924(c), not the carrying prong, and Thomas'
admitted conduct warrants conviction. He therefore cannot show prejudice,
and we need not examine whether there was cause for his default. See
United States v. White, 81 F.3d 80, 83 (8th Cir. 1996). His motion is
procedurally barred.
Even if his motion were not procedurally barred, however, he would
not prevail. The evidence was sufficient to support his conviction. Since
he did not show prejudice, he cannot make out an ineffective assistance of
counsel claim. He has not demonstrated there was a reasonable probability
the result would have been different but for his counsel's advice not to
file an appeal from the denial of his motion to withdraw his plea. See
Wharton-El v. Nix, 38 F.3d 372, 377 (8th Cir. 1994). Furthermore, in light
of the evidence supporting his conviction, Thomas did not show a fair and
just reason to withdraw his guilty plea, and the sentencing
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court did not abuse its discretion by denying that motion.1 See United
States v. Capito, 992 F.2d 218, 219 (8th Cir. 1993).
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
Thomas' claim that the government had to prove he both used
and carried a firearm since he was indicted for use and carrying
is without merit. The use of the conjunctive in the indictment
does not require the government to prove both violations; proof
of either will generally sustain a conviction. See United States
v. Vickerage, 921 F.2d 143, 147 (8th Cir. 1990).
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