United States v. Reginald Arline ( 2000 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 99-2343
    ___________
    United States of America,                *
    *
    Appellee,              *
    *
    v.                                 *
    *
    Reginald DeSean Arline,                  *
    *
    Appellant.             *
    __________                       Appeals from the United States
    District Court for the Southern
    No. 99-2345                      District of Iowa.
    __________
    [UNPUBLISHED]
    United States of America,               *
    *
    Appellee,             *
    *
    v.                                *
    *
    Steven Johnson,                         *
    *
    Appellant.            *
    ___________
    Submitted: August 25, 2000
    Filed: August 31, 2000
    ___________
    Before BEAM, FAGG, and LOKEN, Circuit Judges.
    ___________
    PER CURIAM.
    Reginald DeSean Arline, Steven Johnson, and two others were convicted of drug
    and arson conspiracies, and of using and carrying a destructive device during and in
    relation to the drug and arson conspiracies. We affirmed those convictions on direct
    appeal. See United States v. McMasters, 
    90 F.3d 1394
    , 1396-1402 (8th Cir. 1996),
    cert. denied, 
    519 U.S. 1071
    , 1099 (1997). Appellants Arline and Johnson then filed
    separate motions under 28 U.S.C. § 2255, asserting claims related to Bailey v. United
    States, 
    516 U.S. 137
    (1995). They now appeal the district court's orders denying relief
    without an evidentiary hearing.
    After careful review, we conclude the appellants failed to show a properly
    instructed jury would have acquitted them. We thus affirm the district court's denial of
    their section 2255 motions. See United States v. Foley, 
    200 F.3d 585
    , 586-87 (8th Cir.
    2000) (per curiam) (affirming denial of § 2255 relief to Arline and Johnson's
    coconspirator, who raised Bailey challenge to 18 U.S.C. § 924(c) convictions);
    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 jury instruction
    worked actual and substantial disadvantage amounting to constitutional error, and
    properly instructed jury would have acquitted movant), cert. denied, 
    120 S. Ct. 119
    (1999); Barrett v. United States, 
    120 F.3d 900
    , 901 (8th Cir. 1997) (per curiam)
    (upholding post-Bailey application of coconspirator theory of liability to § 924(c)).
    We affirm the rulings of the district court. See 8th Cir. R. 47B.
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    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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