                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 95-10837
                           (Summary Calendar)




UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                   versus


IRA WAYNE PRIVETTE,

                                               Defendant-Appellant.



          Appeal from the United States District Court
               for the Northern District of Texas
                     (USDC No. 4:94-CV-357)


                                May 16, 1996


Before GARWOOD, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Appellant    Ira   Wayne   Privette    appeals   the   denial   of   his

28 U.S.C. § 2255 motion to vacate his sentence, in which he argued

that the prosecution knowingly used the perjured testimony of a

conspirator,   his   attorney     performed    ineffectively   in    several

instances, the court erred in applying the Sentencing Guidelines to

him, and the co-conspirator and government conspired to frame him.


    *
       Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
On   appeal,    Privette   has    abandoned   his   assertions   that   the

government attempted to frame him.        See Yohey v. Collins, 985 F.2d

222, 225 (5th Cir. 1993).        In its place, he has added a new claim:

that his conviction for using a firearm during and in relation to

a drug-trafficking crime is invalid under a recent Supreme Court

case, Bailey v. United States, 116 S. Ct. 501 (1995).            The court

declines to address this claim as it is raised for the first time

on appeal from denial of habeas relief, and Privette has not shown

plain error.     See Douglass v. United Services Automobile Ass’n,

         F.3d      (5th Cir. Mar. 28, 1996) (No. 95-50007).         In any

event, the Bailey claim is without merit because the only firearms

count of which Privette now stands convicted (count 9) alleged that

Apodaca used the firearm, and Privette was criminally responsible

for that use as a willful and knowing co-conspirator of Apodaca.

The evidence clearly established that Apodaca was “using” a gun

within the meaning of Bailey.1       As for the remainder of Privette’s

claims, this court has reviewed the record, the parties’ arguments,

the magistrate judge’s findings, and the district court’s adoption

of those findings. See United States v. Privette, No. 4:94-CV-357-

D (5th Cir. Aug. 18, 1995).       This court affirms for essentially the

reasons cited by the magistrate judge.

AFFIRMED.




     1
       See United States v. Elwood, 993 F.2d 1146, 1151 (5th Cir.
1993) (co-conspirator liable for substantive § 924(c) offense
committed by another conspirator).

                                      2
