                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-4076
                                   ___________

Thomas McGhee,                          *
                                        *
                   Appellant,           * Appeal from the United States
                                        * District Court for the Eastern
      v.                                * District of Missouri.
                                        *
United States of America,               *      [UNPUBLISHED]
                                        *
                   Appellee.            *
                                   ___________

                            Submitted: June 2, 1999
                                Filed: June 9, 1999
                                   ___________

Before HANSEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       A jury found Thomas McGhee guilty of a drug trafficking offense, and of using
or carrying a firearm during and in relation to a drug trafficking crime. The trial
evidence showed McGhee, who was carrying a significant amount of cocaine base,
drew a loaded firearm from his waistband while being pursued by police. We affirmed
McGhee's conviction on direct appeal. See United States v. Sparks, 949 F.2d 1023,
1024-28 (8th Cir. 1991), cert. denied, 504 U.S. 927 (1992). McGhee then brought this
28 U.S.C. § 2255 proceeding, contending the evidence was insufficient to convict him
of using a firearm, in light of Bailey v. United States, 516 U.S. 137 (1995).
       Having reviewed the record and the parties' briefs, we conclude the district court
correctly denied McGhee's motion. See Swedzinski v. United States, 160 F.3d 498,
501 (8th Cir. 1998) (affirming denial of § 2255 motion where jury instruction on "use"
was contrary to Bailey, but jury was given option of finding "carry" violation; holding
movant must show that jury instruction worked actual and substantial disadvantage
amounting to constitutional error, and that properly instructed jury would have
acquitted movant). Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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