United States of America, Plaintiff-appellee, v. Jose Rafael Altamirano, Defendant-appellant, 133 F.3d 929 (9th Cir. 1997)

MEMORANDUM^* 

Federal prisoner Jose Rafael Altamirano appeals the district court's denial of his 28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence for his guilty plea conviction for using or carrying a firearm in relation to drug offenses in violation of 18 U.S.C. § 924(c).

Altamirano contends that he did not "use" the firearm pursuant to Bailey v. United States, 116 S. Ct. 501 (1995), and that the caption of the indictment charged him with "use" but not "carrying" the firearm. " [T]he caption is completely surplusage and does not control the body of the indictment." United States v. Pazsint, 703 F.2d 420, 423 (9th Cir. 1983). In the body of the indictment, Altamirano was charged with "carrying" the firearm. Moreover, during his change of plea hearing, he admitted to "carrying" the firearm in his belt on his person. Although he did not plead guilty to facts establishing "use," the record conclusively shows that Altamirano admitted facts fulfilling the "carry" prong of Bailey. See Bailey, 116 S. Ct. at 507; United States v. Hernandez, 80 F.3d 1253, 1258 (9th Cir. 1996).

Finally, Altamirano was not entitled to an evidentiary hearing where his allegations did not state a claim for relief. See Quintero v. United States, 33 F.3d 1133, 1135 (9th Cir. 1994) (per curiam), and his remaining procedural claims were waived for failing to raise them initially before the district court, see United States v. Beierle, 77 F.3d 1199, 1201 (9th Cir. 1996).¹ 

AFFIRMED.