United States of America, Plaintiff-appellee, v. Andre Lorenz Bailey, Defendant-appellant, 954 F.2d 725 (6th Cir. 1992)

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US Court of Appeals for the Sixth Circuit - 954 F.2d 725 (6th Cir. 1992) Feb. 6, 1992

Before MERRITT, Chief Judge, and NATHANIEL R. JONES and BATCHELDER, Circuit Judges.


Andre Lorenz Bailey, a federal prisoner, appeals the district court's judgment of conviction following his jury trial on one count of possessing with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a) (1), and one count of using a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1). 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 addition, the appellee has waived oral argument in this appeal. Although directed to do so on August 27, 1991, the appellant has not submitted an oral argument statement. Hence, oral argument is waived in this case. Rule 9(d), Rules of the Sixth Circuit.

On August 28, 1990, a jury convicted Bailey of the two counts described above following a two-day trial. He was sentenced on November 19, 1990 to consecutive terms of 87 months imprisonment on count one and 60 months imprisonment on count two, 4 years supervised release, and a $100 special assessment.

On appeal, Bailey argues that the evidence presented was insufficient to sustain his conviction under the firearm count.

Upon review, we affirm the district court's judgment because Bailey's failure to move at trial for a judgment of acquittal under Fed. R. Crim. P. 29 constitutes a waiver of his insufficient evidence claim. Absent a manifest miscarriage of justice, this court will not review a defendant's challenge to the sufficiency of the evidence where the defendant did not make a Rule 29 motion for a judgment of acquittal during trial. United States v. Swidan, 888 F.2d 1076, 1080 (6th Cir. 1989). There is no evidence of manifest injustice in this record. Bailey's claim is, therefore, barred. Id.

Accordingly, the district court's judgment is affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.