United States of America, Plaintiff-appellee, v. Antonio Valenzuela-jasso, Defendant-appellant, 119 F.3d 8 (9th Cir. 1997)

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US Court of Appeals for the Ninth Circuit - 119 F.3d 8 (9th Cir. 1997) Submitted July 14, 1997**Decided July 18, 1997

Before: HUG, Chief Judge, KOZINSKI and LEAVY, Circuit Judges.

MEMORANDUM* 

Federal prisoner Antonio Valenzuela-Jasso appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his conviction for using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (1). Valenzuela contends his conviction should be vacated because he did not personally "use" a firearm as defined in Bailey v. United States, 116 S. Ct. 501 (1995), and because the jury was given erroneous instructions regarding use of a firearm. We affirm.

The district court did not err by denying Valenzuela's motion because the undisputed evidence in the record indicates Valenzuela carried the firearm on his person during a drug transaction. See United States v. Lopez, 100 F.3d 98, 101 (9th Cir. 1996). Moreover, any instructional error was harmless. California v. Roy, 117 S. Ct. 337, 339 (1997).

AFFIRMED.

 **

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3

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