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.


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).



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