United States v. McKnight

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-6052
BOBBY JOE MCKNIGHT,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CR-96-20)
Submitted: April 17, 1997
Decided: May 7, 1997
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
Bobby Joe McKnight, Appellant Pro Se. Jane H. Jolly, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Bobby Joe McKnight appeals from the district court's denial of his
motion to vacate, set aside, or correct his sentence.* We dismiss.
McKnight pled guilty to use of a firearm during and in relation to
a drug trafficking offense in violation of 18 U.S.C.§ 924(c) (1994).
The conduct comprising the firearm offense, however, was actually
committed by his co-conspirator and attributed to him under the doc-
trine established in Pinkerton v. United States , 328 U.S. 640 (1946).
McKnight now contends that the conduct of his co-defendant did not
constitute "use" as defined by the Supreme Court in Bailey v. United
States, ___ U.S. ___, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (No. 94-
7448) and appears to argue that Bailey should apply retroactively to
his conviction. He also asserts the conduct of his co-defendant should
not be attributed to him because he "never agreed to any part of the
gun."
We note initially that application of Bailey to McKnight's case
would not be retroactive, as Bailey was decided prior to the commis-
sion of McKnight's offense. More importantly, the conduct of Mc-
Knight's co-defendant clearly constituted "carry" as that term has
been defined by this Court. See United States v. Mitchell, 104 F.3d
649, 653 (4th Cir. 1997). We further find that it is reasonably foresee-
able that when engaged in drug distribution one's drug associates may
carry firearms in furtherance of this activity. See United States v.
White, 875 F.2d 427 (4th Cir. 1989) (stating that "it is not unreason-
able to recognize that weapons have become tools of the trade in ille-
gal narcotics operations") (citations omitted). Accordingly, we find
that the co-defendant's actions were properly attributed to McKnight
under the theory set forth in Pinkerton. We therefore deny a certifi-
cate of appealability and dismiss. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
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*Although McKnight labels his motion as being brought under Fed. R.
Crim. P. 35, we agree with the district court that it is more properly a
motion brought under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997).
2
materials before the court and argument would not aid the decisional
process.
DISMISSED
3