IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-41476 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERBERT EDWARD JAMES,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas USDC Nos. 1:97-CV-164 & 1:92-CR-163-1 _________________________________________________________________ January 29, 2001

Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:*

Herbert Edward James, federal prisoner # 04134-078, appeals

the district court’s dismissal of his

motion to

set aside his sentence. Based on the certificate of appealability,

the only issue before the court is whether James received

ineffective assistance of counsel because of his attorney’s failure

to challenge the indictment because two counts (counts 10 and 18)

under

(c)(1) were tied to the same drug conspiracy.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Use of more than one gun during a single drug-trafficking

offense does not support multiple counts of conviction under

§ 924(c). United States v. Privette,

(5th Cir.

1991). Because the weapons listed in counts 10 and 18 are linked

to the same underlying drug offense--conspiracy to knowingly and

intentionally distribute and possess with intent to distribute

cocaine--sentencing James on both counts violated double jeopardy

principles. See

Counsel’s failure to raise this challenge

amounts to deficient performance, and the 20-year consecutive

sentence James received evidences prejudice resulting from

counsel’s performance. Accordingly, James has established that he

received ineffective assistance of counsel under Strickland v.

Washington,

(1984). His conviction on count 18 is

VACATED, and the case is REMANDED to the district court for

resentencing.

VACATED and REMANDED.

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