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UNITED STATES v. BOLLING

August 9, 1996

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCUS BOLLING, Defendant.



The opinion of the court was delivered by: LARIMER

 The defendant in this case, Marcus Bolling, was charged in a two-count indictment with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and with using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). On March 2, 1995, Bolling pleaded guilty to Count 2, the § 924(c) charge. On March 10, 1995, I sentenced Bolling to a sixty-month term of imprisonment. The cocaine charge was dismissed at sentencing in accordance with the plea agreement.

 Bolling has now filed a motion, pro se, to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Bolling asserts several grounds for relief, none of which have merit, and only one of which merits much discussion.

 DISCUSSION

 I. Evidence that Defendant "Used or Carried" Firearm

 Bolling contends that his conviction should be dismissed in light of the Supreme Court's decision in Bailey v. United States, U.S. , 116 S. Ct. 501, 133 L. Ed. 2d 472 (1995), which altered the definition of "using" a firearm in § 924(c)(1) as that term had been previously been construed by the Second Circuit and other circuits. Before addressing the merits of Bolling's claim in this regard, however, some recitation of the underlying facts are necessary.

 During the plea colloquy, the prosecutor, in summarizing the factual basis for the plea, stated that

 
the evidence would show if this matter proceeded to trial that on September 9, 1993, the Rochester Police Department executed a search warrant based on two informant buys at 78 Reynolds Street. The defendant was found. Therein on his person was found a .32 caliber pistol. Also on his person were found fifty-four "nickel" bags of cocaine. The government's evidence would show this cocaine was intended for distribution to others. The gun was used in furtherance of that distribution program.

 Transcript at 9.

 The following colloquy then occurred:

 THE COURT: Mr. Bolling, any quarrel with what the prosecutor recited happened back on September the 9th, 1993?

 THE DEFENDANT: No, sir.

 THE COURT: Do you admit that you did have that .32 caliber pistol in your possession as well as those ...


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