173 F.3d 855 (6th Cir. 1999), 96-1901, Harvey v. U.S.

Docket Nº:96-1901.
Citation:173 F.3d 855
Party Name:Marcus Lamour HARVEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:March 16, 1999
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 855

173 F.3d 855 (6th Cir. 1999)

Marcus Lamour HARVEY, Petitioner-Appellant,


UNITED STATES of America, Respondent-Appellee.

No. 96-1901.

United States Court of Appeals, Sixth Circuit

March 16, 1999

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

Before SILER, DAUGHTREY, and GILMAN, Circuit Judges.

This is an appeal from a judgment denying a motion to vacate sentence filed under 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).

In 1990, Marcus Harvey was named in a three count indictment on cocaine and firearm related charges. Harvey eventually entered guilty pleas to, and was convicted of, possession with intent to distribute over five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and use of a firearm in a drug trafficking offense, in violation of 18 U.S.C. § 924(c). A panel of this court subsequently affirmed the conviction and aggregate 120 month sentence. United States v. Harvey, 16 F.3d 109 (6th Cir.), cert. denied, 513 U.S. 900 (1994).

In 1996, Harvey filed a motion to vacate sentence raising a challenge to the firearm conviction based on the holding of Bailey v. United States, 516 U.S. 137 (1995). The government responded and the matter was referred to a magistrate judge who recommended that the motion should be granted. All parties filed objections to the recommendation. The district court ultimately rejected the recommendation and denied the motion. This appeal followed and this court directed a certificate of appealability issue as to the following question: Has Harvey's conviction under 18 U.S.C. § 924(c) been rendered unconstitutional in light of Bailey and its progeny?

Harvey argues on appeal that the facts of his arrest do not support a conviction under the "use" or the "carry" prong of § 924(c). This court renders de novo review of decisions granting or denying relief under 28 U.S.C. § 2255 and reviews a district court's findings of fact for clear error. Cardinal v. United States, 954 F.2d 359, 362 (6th Cir.1992). An examination of the record and intervening law reflects that the district...

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