Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Curt N. Price, Defendant-appellant, 106 F.3d 393 (4th Cir. 1997)

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US Court of Appeals for the Fourth Circuit - 106 F.3d 393 (4th Cir. 1997) Submitted Jan. 9, 1997. Decided Jan. 29, 1997

Appeal from the United States District Court for the District of Maryland, at Baltimore. Frank A. Kaufman, Senior District Judge. (CR-91-1-K, CA-96-645-K)

Curt N. Price, Appellant Pro Se.

Richard Charles Kay, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland for Appellee.

Before HALL and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.



Appellant seeks to appeal the district court's order denying his motion filed under 28 U.S.C. § 2255 (1994), amended by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. We have reviewed the record and the district court's opinion and find no reversible error.

Specifically, we find that Appellant's conviction, on a guilty plea, under 18 U.S.C. § 924(c) (1994), is proper under the "carry" prong of that statute. See Bailey v. United States, --- U.S. ---, 64 U.S.L.W. 4039 (U.S. Dec. 6, 1995) (94-7448, 94-7492). In addition, the record does not support Appellant's claim that he was promised a Fed. R. Crim. P. 35 motion by the Government. We also find that because United States Sentencing Commission, Guidelines Manual § 3E1.1(b) (Nov.1992), did not become effective until after the date of Appellant's sentencing, and because the amendment is not retroactive under USSG § 1B1.10, Appellant's claim that he is entitled to a third level of reduction for acceptance of responsibility is without merit. Finally, because none of the issues Appellant raised have merit, we find that Appellant has not demonstrated any attorney error required by Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984), and therefore cannot meet his burden under Hill v. Lockhart, 474 U.S. 52, 58-59 (1985), necessary to obtain relief from his guilty plea based on ineffective assistance.

Accordingly, we deny a certificate of appealability and dismiss this appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.