United States of America, Plaintiff-appellee, v. Terry Lee Mcneal, Defendant-appellant, 961 F.2d 221 (10th Cir. 1992)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner Terry Lee McNeal appeals the denial of his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner was convicted of armed robbery, in violation of 18 U.S.C. § 2113(a) (d), and also of carrying a firearm during commission of a crime of violence, in violation of 18 U.S.C. § 924(c) (1). He received a fifteen year sentence on the armed bank robbery count and a consecutive five year sentence on the firearm count. He argues that to apply § 924(c) when the underlying crime requires the carrying of a weapon constitutes double jeopardy in violation of his constitutional rights.

The government correctly points out that this issue has been decided by this circuit against the position taken by petitioner in United States v. Lanzi, 933 F.2d 824 (10th Cir. 1991). That decision controls the disposition herein.

AFFIRMED.

The mandate shall issue forthwith.