v.
Roy C. Bowens
NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that they are not precedent and generally should not be cited unless relevant to establishing the doctrines of res judicata, collateral estoppel, the law of the case, or if the opinion has persuasive value on a material issue and no published opinion would serve as well.
UNITED STATES of America, Appellee,
v.
Roy C. Bowens, Appellant.
No. 97-3265.
United States Court of Appeals, Eighth Circuit.
Submitted: Feb. 5, 1998
Filed: Feb. 10, 1998
Appeal from the United States District Court for the Eastern District of Missouri.
Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
PER CURIAM.
In 1994 Roy C. Bowens pleaded guilty to possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and to using and carrying a firearm during a drug-trafficking offense, in violation of 18 U.S.C. § 924(c)(1). After Bowens moved under 28 U.S.C. § 2255 to set aside his firearm conviction in light of Bailey v. United States, 516 U.S. 137, 143-44 (1995) (defining "use" prong of § 924(c)(1)), the district court[1] granted the motion, imposed a two-level enhancement under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (1997) (add 2 levels if dangerous weapon, including firearm, was possessed), and resentenced Bowens to 82 months imprisonment and five years supervised release. Bowens appeals, arguing the court lacked jurisdiction to resentence him on the unchallenged drug conviction. Because Bowens's argument is foreclosed by United States v. Harrison, 113 F.3d 135, 137-38 (8th Cir.1997), we affirm the judgment of the district court.
The Honorable George F. Gunn, Jr., United States District Judge for the Eastern District of Missouri