IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-10313 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL WAYNE MCCOY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:97-CV-1021-R USDC No. 3:92-CR-92-R --------------------

August 25, 1999

Before KING, Chief Judge, and DAVIS and SMITH, Circuit Judges.

PER CURIAM:*

Michael Wayne McCoy, prisoner number 23007-077, appearing

pro se, appeals the denial of his motion to vacate sentence.

This court granted McCoy a certificate of appealability (COA) on

the sole issue of whether the evidence below was sufficient to

support McCoy’s conviction for violation of

(c),

which prohibits using or carrying a firearm during and in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-10313 -2-

relation to a drug trafficking offense. Finding no error, we

affirm.

The facts of this case were set out in United States v.

Haggard, No. 92-1856 (5th Cir. Sept. 21, 1993), and we do not

repeat them in detail here. In short, McCoy and his co-

defendant, Billy Jack Haggard, were discovered by law enforcement

agents in a motel room engaged in an amphetamine distribution

operation. When an agent approached him, McCoy fell back onto

the bed on which he was seated and, as he did so, a semiautomatic

pistol slid out from underneath a pillow.

We previously upheld McCoy’s conviction, finding that there

was sufficient evidence that McCoy used a firearm during a drug

trafficking offense. United States v. Haggard,

(5th

Cir. 1993) (Table, No. 92-1856). However, since that decision,

the United States Supreme Court decided Bailey v. United States,

(1995), in which the Court held that mere possession

of a firearm is insufficient to satisfy the “use” prong of

§ 924(c). Id. at 143. Rather, the defendant must actively

employ the weapon. Id. at 144. McCoy argues that the facts of

this case do not support a finding of “use” as defined in Bailey.

Although McCoy may be correct, his appeal is ultimately

without merit. McCoy’s co-defendant, Haggard, recently raised

the same argument which McCoy proposes here. See United States

v. Haggard, No. 97-10229 (5th Cir. Mar. 10, 1999) (Haggard II).

We rejected Haggard’s contention as we found that there was

sufficient evidence to show that either Haggard or McCoy

transported the firearm into the motel room, thereby satisfying No. 98-10313 -3-

the “carry” prong of § 924(c). See id. at 4. Moreover, the

evidence demonstrates that the weapon was easily accessible to

McCoy. See United States v. Wainuskis,

(5th

Cir. 1998) (in order to satisfy carry prong, weapon must be

transported and within arm’s reach). Thus, the evidence was

sufficient to show that McCoy carried a weapon during the

commission of a drug trafficking offense.

Although McCoy’s COA was granted on the sole issue of

sufficiency of evidence, he also addresses, albeit briefly, the

adequacy of the jury instructions, alleging, in essence, that an

instruction on constructive possession could have confused the

jury with respect to the “use” prong. As we did not grant the

COA on the issue of jury instructions, we need not address this

argument. Further, McCoy did not raise this argument below,

limiting any review to the “plain error” standard. See United

States v. Calverley,

(5th Cir. 1994) (en

banc). Nevertheless, our decision in Haggard II also forecloses

McCoy’s argument, as we found that despite a flawed instruction

on “use,” the jury necessarily found facts to support a

conviction for carrying a firearm. 97-10229 at 4. Thus, any

error was harmless and, therefore, does not meet the higher plain

error standard.

Accordingly, we AFFIRM the district court’s denial of

McCoy’s § 2255 motion.

AFFIRMED.