United States v. Cureaux

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 96-31069 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

LEHMAN K. LUNDY, Defendant-Appellant.

No. 96-31263

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

KERRY CUREAUX, Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC Nos. 96-CV-321 M & 96-CV-1455 - - - - - - - - - -

June 25, 1999 Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges. PER CURIAM:*

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 96-31069 No. 96-31263 -2-

Lehman K. Lundy, federal prisoner # 21853-034, and Kerry Cureaux, federal prisoner # 21855-034, appeal the denial of their motions to vacate, set aside, or correct their sentences, filed pursuant to 28 U.S.C. § 2255. They argue that the evidence is not sufficient to support the their convictions under 18 U.S.C. § 924(c) for using and carrying firearms. The district court’s erroneous “use” instruction was harmless because the jury found beyond a reasonable doubt the facts necessary to support a conviction for “carrying.” See United States v. Brown, 161 F.3d 256 (5th Cir. 1998); United States v. Acosta, 763 F.2d 671, 681 (5th Cir. 1985); United States v. Hall, 110 F.3d 1155, 1161 (5th Cir. 1997). The district court’s denial of their § 2255 motions is AFFIRMED.

Appellant Cureaux’s motion for release pending this appeal is DENIED. See Calley v. Callaway, 496 F.2d 701, 702 (5th Cir. 1974).