Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.William Fred BURNS, Defendant-Appellant.

No. 87-2184.

United States Court of Appeals, Ninth Circuit.

Submitted May 27, 1988.Decided July 5, 1988.* 

Before NELSON, NOONAN and LEAVY, Circuit Judges.


William Burns appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence. Burns contends that his convictions for being a convicted felon in possession of a firearm, and use of a firearm during the commission of a felony, were improper because the government failed to prove that the firearm was operable. Burns also contends that he was denied effective assistance of counsel at trial and on appeal because his attorneys failed to raise this issue.

The judgment is affirmed. The direct and circumstantial evidence presented at the trial was sufficient to prove that Burns's gun was a firearm as defined by 18 U.S.C. § 921(a) (3) and 18 U.S.C. app. Sec. 1202(c) (3) (repealed 1986). The government need not produce direct evidence that the weapon could actually be fired; it is sufficient that there be evidence from which the jury could reasonably infer that the firearm could be fired, or was designed to be fired. See United States v. Harris, 792 F.2d 866, 868-69 (9th Cir. 1986); United States v. Liles, 432 F.2d 18, 19-20 (9th Cir. 1970). Because the evidence at trial was sufficient to establish that Burns was carrying a firearm within the statutory definition, his claim of ineffective assistance of counsel must fail because he can prove neither that his attorneys' performance was incompetent nor that he was prejudiced in any way. See Strickland v. Washington, 466 U.S. 668, 687-97 (1984).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3