IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-30887 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TIMMY COBBINS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 96-CV-1657-I (89-295) - - - - - - - - - - December 23 1996 Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM:*

Timmy Cobbins, federal inmate #21216-034, appeals the denial

of this

motion. Cobbins argues that because the

superseding indictment charged him and his

codefendants/conspirators with using “and” carrying firearms

during and in relation to a drug conspiracy and because “and” and

“or” both mean “and,” the Government was obligated to prove both

“use” and “carry” under

(c), and the Government

did not prove active employment of the firearm, i.e. “use,” as

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 96-30887 - 2 -

defined by Bailey v. United States,

(1995). He

also argues that the jury instructions covering § 924(c)

erroneously defined “use” under the statute as defined by Bailey

and that in light of the remand in United States v.Fike,

(5th Cir.), cert. denied,

(1996),

Cobbins’ case should receive the same result.

We have carefully reviewed the arguments and the appellate

record. For essentially the same reasons as explained by the

district court in its order denying § 2255 relief, we conclude

that the district court did not err in denying Cobbins’ motion.

See United States v. Cobbins, No. 96-1657 (89-295) (E.D. La. July

31, 1996).

To the extent that Cobbins requires a certificate of

appealability (COA) in order to appeal the district court’s

judgment, we conclude that Cobbins has not made a substantial

showing of the denial of a constitutional right. See

(c)(2).

AFFIRMED. COA DENIED.