United States v. DeSouza

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-6219
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DAYMIONE DESOUZA, a/k/a Fata, a/k/a Demione
DeSouza,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. Malcolm J. Howard, District
Judge. (CR-93-53-H, CA-96-162-4-H)
Submitted: May 19, 1998 Decided: October 22, 1998
Before NIEMEYER, HAMILTON, and WILLIAMS, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Daymione DeSouza, Appellant Pro Se. Bruce Charles Johnson, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Daymione DeSouza appeals the district court’s order denying
relief on his motion filed under 28 U.S.C.A. § 2255 (West 1994 &
Supp. 1998). DeSouza challenges the validity of his conviction,
entered pursuant to his guilty plea, of using and carrying a
firearm in relation to a drug trafficking crime in violation of 18
U.S.C. §§ 2, 924(c) (1994). DeSouza contends that in light of the
Supreme Court’s decision in Bailey v. United States, 516 U.S. 137(1995), interpreting the meaning of “use” under § 924(c), the
requisite factual basis for his plea was lacking and his plea was
involuntary.
We reject DeSouza’s contention that the record demonstrates
that he did not “use” or “carry” a firearm within the meaning of
§ 924(c)(1) as that statute was interpreted by Bailey. DeSouza is
liable for the acts of his co-conspirators which constitute use or
carry under § 924(c). See United States v. Wilson, 135 F.3d 291,
305-06 (4th Cir. 1998); United States v. Phan, 121 F.3d 149, 152
n.2 (4th Cir. 1997), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3388(U.S. Feb. 23, 1998) (No. 97-863). Accordingly, we deny DeSouza’s
motion for a certificate of appealability and dismiss the appeal.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court
and argument would not aid the decisional process.
DISMISSED
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