Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.ray James, Petitioner-appellant, v. United States of America, Respondent-appellee, 124 F.3d 204 (7th Cir. 1997)Annotate this Case
Submitted July 10, 1997. *July 18, 1997. Rehearing and Suggestion for Rehearing En Banc Denied Aug. 25, 1997
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 96 C 1063 (93 CR 86); Hart, Judge.
Before ESCHBACH, EASTERBROOK, and RIPPLE, JJ.
Ray James was convicted of using or carrying a gun during and in relation to a drug offense, in violation of 18 U.S.C. § 924(c). He argued on appeal (among other things) that the evidence did not support that conviction. We disagreed and affirmed in an unpublished order, reasoning that the evidence showed that James had "used" the gun in a forbidden way. No. 93-3240 (7th Cir. June 28, 1994).
A year later, the Supreme Court held that this circuit's understanding of the "use" component of § 924(c) was incorrect. Bailey v. United States, 116 S. Ct. 501 (1995). James then sought relief under 28 U.S.C. § 2255. The district court denied his petition, observing that everything we had said about James's acts remained correct--though it is now evident that we should have sustained the conviction under the "carry" ingredient of § 924(c). We affirm for the reasons the district court gave.
This successive appeal has been submitted to the panel that heard the prior appeal. See Operating Procedure 6(b). The panel has concluded that oral argument would not assist the court. See Fed. R. App. P. 34(a); Cir.R. 34(f)