IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-30665 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEITH FENNIDY,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 96-CV-1028 USDC No. 92-CR-10-H - - - - - - - - - -

December 9, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Keith Fennidy, a federal prisoner (# 22810-034), appeals

from the district court’s judgment denying his

motion to set aside his conviction.

Fennidy contends that his guilty-plea conviction for using a

firearm during a drug-trafficking crime,

(c),

should be vacated in light of the Supreme Court’s decision in

Bailey v. United States,

(1995). Fennidy’s pro se

argument, liberally construed, is that the factual basis

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 96-30665 -2-

presented by the Government in support of his guilty plea does

not support his conviction under the “use” prong of § 924(c) as

defined in Bailey. The plea colloquy reflects that the

Government stated only that a semiautomatic pistol “was located

in the passenger compartment” of the car in which Fennidy and his

codefendant, William Carter, were riding.

Codefendant Carter raised nearly identical contentions in

his own § 2255 motion. In addressing Carter’s appeal from the

denial of § 2255 relief, this court reasoned that the “mere

location [of the gun] inside an automobile does not, without

more, equate with the `use’ of a firearm in relation to a drug

trafficking offense.” United States v. Carter,

(5th Cir. 1997). The court reversed Carter’s contention, vacated

his sentence, and remanded for further proceedings.

Fennidy and codefendant Carter pleaded guilty during the

same plea proceeding. For reasons identical to those set forth

in Carter, we conclude that there was not a factual basis for

Fennidy’s guilty plea to the § 924(c) offense. Accordingly, the

judgment of the district court is REVERSED, Fennidy’s § 924(c)

conviction is REVERSED, his sentence is VACATED, and this case is

REMANDED for further proceedings.

REVERSED, VACATED, AND REMANDED.