UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4082
FREEMAN LEE ROGERS, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
James C. Cacheris, Senior District Judge.
(CR-00-137)
Submitted: October 8, 2003
Decided: November 12, 2003
Before LUTTIG and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Leslie Carter Rawls, Charlotte, North Carolina, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Gretchen C. F. Shappert, Assis-
tant United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. ROGERS
OPINION
PER CURIAM:
A jury convicted Freeman Lee Rogers, Jr., of conspiracy to distrib-
ute and to possess with intent to distribute more than fifty grams of
crack cocaine and more than two kilograms of cocaine (Count 1), in
violation of 21 U.S.C. § 846 (2000), and using and carrying a firearm
to commit murder during and in relation to a drug trafficking offense,
in violation of 18 U.S.C. § 924(c)(1), (j)(1) (2000) (Count 2). Rogers
appeals his conviction on Count 2, alleging that the district court erred
in denying his motion for judgment of acquittal, see Fed. R. Crim. P.
29, and that a variance occurred between the § 924 charge in the
indictment and the evidence adduced at trial. We affirm.
Rogers contends that the evidence was insufficient to support his
§ 924 conviction in Count 2 because the victim’s death did not occur
during and in relation to, or in furtherance of, the drug conspiracy.*
Rogers asserts that there was no nexus between the gun and the con-
spiracy because he used the gun only when he tried to rob the victim.
We review the district court’s decision to deny a motion for judgment
of acquittal de novo. United States v. Gallimore, 247 F.3d 134, 136
(4th Cir. 2001). Where, as here, the motion was based on insufficient
evidence, "[t]he verdict of a jury must be sustained if there is substan-
tial evidence, taking the view most favorable to the Government, to
support it." Glasser v. United States, 315 U.S. 60, 80 (1942). We
"have defined ‘substantial evidence,’ in the context of a criminal
action, as that evidence which ‘a reasonable finder of fact could
accept as adequate and sufficient to support a conclusion of a defen-
dant’s guilt beyond a reasonable doubt.’" United States v. Newsome,
322 F.3d 328, 333 (4th Cir. 2003) (quoting United States v. Burgos,
94 F.3d 849, 862-63 (4th Cir. 1996) (en banc)).
Taking the evidence in the light most favorable to the Government,
Glasser, 315 U.S. at 80, our review of the record leads us to conclude
that the evidence was sufficient to prove that Rogers used the gun
*Defendant does not challenge his conspiracy conviction. See
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999)
(noting that issues not briefed or argued are deemed abandoned).
UNITED STATES v. ROGERS 3
during and in relation to the drug conspiracy. The victim went to Rog-
ers’ house to buy crack and handed Rogers a gold bracelet to pay
Joseph Tate, Rogers’ stepson, for the crack. Tate gave Rogers the
crack to give to the victim. Rogers then took the victim to return the
bracelet for cash to satisfy the debt the victim owed Tate for the
crack. Rogers purposefully took the gun from Tate’s room because he
planned to rob the victim of the cash refund; thus, the presence of the
gun at the murder scene was not the result of an accident or a coinci-
dence. United States v. Mitchell, 104 F.3d 649, 654 (4th Cir. 1997);
see United States v. Lomax, 293 F.3d 701, 705 (4th Cir.) (stating that
"statutory term ‘furtherance’ . . . requires the government to present
evidence indicating that the possession of a firearm furthered,
advanced, or helped forward a drug trafficking crime"), cert. denied,
537 U.S. 1031 (2002). And, Rogers used a portion of the refund to
pay Tate $50 to satisfy the victim’s drug debt, thereby "facilitat[ing],
or potentially facilitat[ing], the drug trafficking offense." Mitchell,
104 F.3d at 654. We therefore find that the evidence was sufficient
to support Rogers’ § 924(c) conviction.
Rogers also contends on appeal that a variance occurred between
the § 924 charge in the indictment and the evidence adduced at trial.
Rogers points to the fact that the indictment charged premeditated
murder and felony murder while the court instructed the jury that it
could convict based upon either theory. Rogers’ claim is foreclosed
by circuit precedent. See United States v. Montgomery, 262 F.3d 233,
242 (4th Cir.) (stating that "[w]here a statute is worded in the disjunc-
tive, federal pleading requires the Government to charge in the con-
junctive[;] [t]he district court, however, can instruct the jury in the
disjunctive") (internal quotation marks and citation omitted), cert.
denied, 534 U.S. 1034 (2001); United States v. Champion, 387 F.2d
561, 563 (4th Cir. 1967) (approving disjunctive jury instructions
when statute disjunctively worded and indictment conjunctively
worded). Rogers does not dispute that the Government proved felony
murder. See United States v. Williams, 342 F.3d 350, 355 (4th Cir.
2003) (discussing types of murder under 18 U.S.C. § 1111 (2000)).
We therefore find that Rogers is not entitled to relief on this claim.
Accordingly, we affirm. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
4 UNITED STATES v. ROGERS
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED