United States v. Lundy

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-31069
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEHMAN K. LUNDY,
Defendant-Appellant.
No. 96-31263
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KERRY CUREAUX,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC Nos. 96-CV-321 M & 96-CV-1455
- - - - - - - - - -
June 25, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 96-31069
No. 96-31263
-2-
Lehman K. Lundy, federal prisoner # 21853-034, and Kerry
Cureaux, federal prisoner # 21855-034, appeal the denial of their
motions to vacate, set aside, or correct their sentences, filed
pursuant to 28 U.S.C. § 2255. They argue that the evidence is
not sufficient to support the their convictions under 18 U.S.C.
§ 924(c) for using and carrying firearms. The district court’s
erroneous “use” instruction was harmless because the jury found
beyond a reasonable doubt the facts necessary to support a
conviction for “carrying.” See United States v. Brown, 161 F.3d
256 (5th Cir. 1998); United States v. Acosta, 763 F.2d 671, 681
(5th Cir. 1985); United States v. Hall, 110 F.3d 1155, 1161 (5th
Cir. 1997). The district court’s denial of their § 2255 motions
is AFFIRMED.
Appellant Cureaux’s motion for release pending this appeal
is DENIED. See Calley v. Callaway, 496 F.2d 701, 702 (5th Cir.
1974).