United States v. Woods

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4223

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

FRANKLIN EDWARD WOODS,

Defendant - Appellant.

No. 04-4231

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARK WAYNE WOODS,

Defendant - Appellant.

No. 04-4232

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus
BRUCE EDWARD WOODS,

Defendant - Appellant.

No. 07-4331

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MARK WAYNE WOODS,

Defendant - Appellant.

No. 07-4395

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRUCE EDWARD WOODS,

Defendant - Appellant.

Appeals from the United States District Court for the Western
District of Virginia, at Harrisonburg. Norman K. Moon, District
Judge. (5:03-cr-30054-nkm)

Argued: November 2, 2007 Decided: March 26, 2008

2
Before WILLIAMS, Chief Judge, and WILKINSON and MICHAEL, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Marvin David Miller, Alexandria, Virginia, for Appellants.
Thomas Ernest Booth, Criminal Division, Appellate Section, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: James G. Connell, III, DEVINE & CONNELL, P.L.C., Fairfax,
Virginia, for Appellant Mark Wayne Woods; Louis Dene, DENE & DENE,
P.C., Abingdon, Virginia, for Appellant Bruce Edward Woods; Robert
Paul Dwoskin, Charlottesville, Virginia, for Appellant Franklin
Edward Woods. John L. Brownlee, United States Attorney, Roanoke,
Virginia; William F. Gould, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville, Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

This appeal involves Mark Wayne Woods, Bruce Edward Woods, and

Franklin Edward Woods, who together operated a family drug ring,

and who were charged, convicted, and sentenced on numerous counts

related to their business. The Woodses raise a variety of

challenges to their convictions and sentences, and Bruce Woods also

challenges the sentence enhancement to his conviction under 18

U.S.C. § 924(c) (2000) for brandishing a machinegun. For the

reasons that follow, we find their claims lack merit and affirm the

Woodses’ convictions and sentences.

I.

A.

Mark Wayne Woods (“Mark”), his older brother Bruce Edward

Woods (“Bruce”), and his father Franklin Edward Woods (“Frank”),

sold methamphetamine and marijuana in Augusta Springs, Virginia,

from the spring of 2002 until the summer of 2003. Mark led the

family drug ring, and Bruce, who himself abused illegal drugs, sold

methamphetamine from time to time. Franklin helped the family

operation by storing methamphetamine in his trailer, collecting

drug money from Mark, and helping customers find Mark when they

wanted to purchase drugs.

The Woodses ran their drug ring from three locations:

Franklin’s trailer, a “green house” located on Franklin’s property

4
about six hundred yards from his trailer, and Mark’s trailer, which

was about eight miles away from Franklin’s and within plain view of

the Augusta Correctional Center. As part of this drug ring, the

Woodses not only exchanged drugs and cash, but they also exchanged

drugs and guns.

On June 27, 2002, three Augusta County law enforcement

officers went to investigate Mark’s trailer after having observed,

from their vantage point at the Augusta Correctional Center,

approximately sixty small marijuana plants growing in his backyard.

Mark was not home, but shortly after the officers arrived, Bruce

showed up and ordered the officers to leave Mark’s property. The

officers seized the marijuana plants and left the property. Later

that same day, the officers returned with a search warrant. The

officers seized approximately seventy-two grams of methamphetamine,

some marijuana, two digital scales, surveillance equipment, and

other drug paraphernalia.

On September 26, 2002, the Augusta County and the Staunton

County police departments assembled a SWAT team to execute search

warrants at Franklin’s trailer and at the “green house” on

Franklin’s property. As the team searched the property, Bruce

arrived and resisted the officers’ efforts. At one point, Bruce

grabbed an officer’s machinegun and pointed it at another officer.

The officers were able to wrestle the gun away from Bruce and

eventually subdued him. The search turned up approximately eighty-

5
three grams of methamphetamine, some marijuana, plastic baggies, a

drug ledger, two sets of scales, and other drug paraphernalia, as

well as cash, ammunition, and numerous firearms.

On June 4, 2003, a federal grand jury returned a sixteen-count

indictment against the Woodses. The indictment charged Mark,

Bruce, and Franklin with conspiracy to distribute and possess with

the intent to distribute 50 grams or more of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) (2000) and 21 U.S.C. § 846

(2000) (Count One). The indictment also charged Mark with one

count of possession of a firearm in furtherance of a drug

trafficking crime, specifically, conspiracy to distribute and

possess with intent to distribute methamphetamine, 18 U.S.C.

§ 924(c)(1) (Count Two); four counts of distribution of

methamphetamine, 21 U.S.C. § 841(a)(1) (Counts Three, Six, Nine,

and Twelve); four counts of possession of a firearm in furtherance

of a drug trafficking crime, namely, distribution of

methamphetamine, 18 U.S.C. § 924(c)(1) (Counts Four, Seven, Ten,

and Thirteen); and four counts of being a felon in possession of a

firearm, 18 U.S.C. § 922(g)(1) (2000) (Counts Five, Eight, Eleven,

and Sixteen). The indictment further charged Bruce with one count

of possessing and brandishing a firearm, 18 U.S.C. § 924(c)(1)

(Count Fourteen), and one count of being an illegal drug user in

possession of a firearm that had moved in interstate commerce, 18

U.S.C. § 922(g)(3) (Count Fifteen).

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 On June 5, 2003, Augusta County law enforcement officers

arrested the Woodses. On October 27, 2003, a jury trial commenced.

Four days later, the jury convicted Mark, Bruce, and Franklin of

the conspiracy charged in Count One. The jury convicted Bruce on

all counts. The jury convicted Mark on almost all counts, but

acquitted him of one of the five § 924(c)(1) counts and one of the

four § 841(a)(1) distribution counts, and convicted him of the

lesser included offense of simple possession of methamphetamine on

the remaining three § 841(a)(1) distribution counts.

Applying the then-mandatory U.S. Sentencing Guidelines, the

district court sentenced Franklin to 78 months’ imprisonment, Bruce

to 171 months’ imprisonment, and Mark to 1,128 months’

imprisonment. Because Bruce Woods brandished a machinegun, the

government sought to enhance his sentence under 18 U.S.C.

§ 924(c)(1)(B)(ii), which provides for a minimum of 360 months’

imprisonment if the firearm possessed under § 924(c) was a

machinegun. The district court declined to enhance Bruce’s

sentence, reasoning that under the Supreme Court’s decision in

Castillo v. United States, 530 U.S. 120, 126 (2000), the type of

firearm used, such as a machinegun, was an element of the

§ 924(c)(1) offense that had to be submitted to the jury and found

beyond a reasonable doubt.

The Woodses appealed both their convictions and sentences, and

the government appealed the district court’s refusal to apply

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§ 924(c)(1)(B)(ii)’s machinegun enhancement to Bruce’s sentence.

On December 19, 2006, prior to oral argument, and on motion of Mark

and Bruce Woods, this court remanded the case for resentencing

pursuant to United States v. Booker, 543 U.S. 220 (2005).

Applying the now-advisory U.S. Sentencing Guidelines, the

district court did not alter Mark’s sentence. But it did adjust

Bruce’s. First, at the resentencing hearing, the government

admitted that Bruce’s § 922(g)(3) conviction (Count Fifteen) was

defective because the government had failed to present sufficient

evidence at trial that the machinegun Bruce had brandished had

traveled in interstate commerce. Thus, Count Fifteen of the

indictment was dismissed as to Bruce Woods. Second, the court

applied the enhancement to Bruce’s sentence for the § 924(c)

conviction (Count Fourteen), noting that its earlier reliance on

Castillo was misplaced (since Castillo involved the pre-1998

version of § 924(c)(1)(A), which did not contain separate

provisions for the definition of the crime on the one hand and the

penalties therefor on the other, while the current version of

§ 924(c)(1) does). The district court concluded our decision in

United States v. Harrison, 272 F.3d 220 (4th Cir. 2001), supported

application of the mandatory minimum 360-month term to Bruce’s

sentence. Accordingly, the district court resentenced Bruce to 360

months’ imprisonment for his § 924(c)(1) conviction to run

8
consecutive to a term of 87 months’ imprisonment for his § 846

conspiracy conviction (Count One).

Mark and Bruce timely appealed.

II.

Both Mark and Bruce Woods contend that errors in the district

court’s jury instructions in regard to their § 924(c) convictions

constructively amended the indictment. No constructive amendment

objection to the jury instructions was raised at trial. The

district judge was therefore never alerted to the error of which

appellants now so vigorously complain.

A constructive amendment violates a defendant’s Fifth

Amendment right to a trial on a charge issued by the grand jury.

United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). Under

this court’s precedent, constructive amendment is error per se that

must be corrected on appeal, even though no constructive amendment

objection to the jury instructions was raised at trial. United

States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994) (en banc); see

also United States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007).

However, in our judgment, no constructive amendment of the

indictment occurred.

A.

“A constructive amendment to an indictment occurs when . . .

the court (usually through its instructions to the jury) . . .

9
broadens the possible bases for conviction beyond those presented

by the grand jury.” Floresca, 38 F.3d at 710. Constructive

amendments are considered fatal variances “because the indictment

is altered to change the elements of the offense charged, such that

the defendant is actually convicted of a crime other than that

charged in the indictment.” Randall, 171 F.3d at 203. The Woodses

contend that the jury instructions below broadened the possible

bases for conviction by cross-matching portions of what they

contend are the two distinct offenses contained in § 924(c)(1)(A).

We turn first to the Woodses’ claim that § 924(c) creates two

distinct offenses: the first criminalizing the use or carrying of

a firearm during and in relation to a drug trafficking crime or a

crime of violence, and the second criminalizing the possession of

a firearm in furtherance of a drug trafficking crime or a crime of

violence. In order to evaluate this claim, we must first examine

the language of § 924(c), which states:

[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime (including a crime of
violence or drug trafficking crime that provides for an
enhanced punishment if committed by the use of a deadly
or dangerous weapon or device) for which the person may
be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug
trafficking crime . . . be sentenced to a term of
imprisonment of not less than 5 years . . . .

18 U.S.C. § 924(c)(1)(A).

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 This court has not yet decided whether § 924(c) creates more

than one offense. The test for determining whether statutory

provisions create distinct offenses is “whether each provision

requires proof of a fact which the other does not.” Blockburger v.

United States, 284 U.S. 299, 304 (1932). The two prongs of

§ 924(c) not only prohibit different types of conduct (use and

carry versus possession), but they also diverge in how strong the

nexus between the firearm and the predicate drug trafficking crime

or crime of violence must be: a firearm must be used or carried

only “during and in relation to” a predicate crime, but a firearm

must be possessed “in furtherance of” such a crime. Therefore, we

agree with the conclusion -- reached by the Sixth, Eighth, and

Tenth Circuits -- that § 924(c) indeed creates distinct “use and

carry” and “possession” offenses. See United States v. Gamboa, 439

F.3d 796, 810 (8th Cir. 2006); United States v. Brooks, 438 F.3d

1231, 1237 (10th Cir. 2006); United States v. Combs, 369 F.3d 925,

933 (6th Cir. 2004). If the Woodses’ were indicted for one

§ 924(c) offense but convicted on the other, this would of course

mandate reversal under our precedent. Floresca, 38 F.3d at 710.

B.

The fact that § 924(c) creates two distinct offenses, however,

does not answer the question of whether the jury instructions here

constituted a constructive amendment to the indictment. This court

has made clear that when the evidence at trial or the court’s

11
instructions to the jury differ from what was charged in the

indictment but do not broaden the bases for conviction, a mere

variance has occurred, which does not fall within the ambit of

Floresca’s per se rule. Randall, 171 F.3d at 203. Other circuits,

in determining whether jury instruction errors constitute

constructive amendments or mere variances, have held that only when

there is a “substantial likelihood” that the defendant may have

been convicted of an uncharged offense can it be said that a

constructive amendment has occurred. See United States v. Avery,

295 F.3d 1158, 1176-77 (10th Cir. 2002); United States v. Wade,

266 F.3d 574, 584 (6th Cir. 2001).

As an initial matter, we acknowledge that there were errors in

the jury instructions. The indictment charged Mark and Bruce with

“knowingly possess[ing] a firearm in furtherance of a drug

trafficking crime.” 18 U.S.C. § 924(c)(1)(A). The district court,

however, instructed the jury at certain points that it could

convict Mark and Bruce not just if it found that they had

“possessed” a firearm, but if they had “used” or “carried” a

firearm. Also, at certain points in the instructions, the court

cross-matched the “during and in relation to” provision of § 924(c)

(while also misstating that provision in the disjunctive as “during

or in relation to”) with the “in furtherance of” provision of

§ 924(c).

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 While these jury instructions undoubtedly created variances at

trial, we do not believe that those variances rise to the level of

constructive amendment. To begin, the Woodses raised no

constructive amendment objection to the jury instructions at trial,

which suggests that they did not regard the instructions as so

egregious as to result in conviction on a crime not set forth in

the indictment. Putting that aside, however, and viewing the jury

instructions as a whole, we do not believe the errors here caused

the jury to convict the Woodses on an uncharged offense. See

Floresca, 38 F.3d at 710. Certainly there was no “substantial

likelihood” of the jury convicting on an uncharged offense. See,

e.g., Avery, 295 F.3d at 1177; Wade, 266 F.3d at 584.

First, the addition of the terms “use” and “carry” to the

recitation of the indicted offense did not broaden the indictment.

One who uses or carries a firearm must necessarily be found to

possess it. See, e.g., Gamboa, 439 F.3d at 810 (“[I]mplicit in a

finding that [a defendant] ‘used and carried’ firearms lies a

finding that [the defendant] simultaneously ‘possessed’ the

firearms . . . .”). Therefore, the addition of those terms created

little risk that the Woodses were convicted without the government

proving the necessary elements of the charged crime of possession.

Second, despite the substitution at certain points of the

“during or in relation to” language for the “in furtherance”

language, the jury instructions on the whole make clear that, to

13
reach a guilty verdict on the § 924(c) offenses, the jury had to

find that a firearm was possessed “in furtherance of” a drug

trafficking crime. To begin, the district judge used the correct

“in furtherance of” language when it read each and every one of the

challenged counts to the jury. JA 741 (setting forth Count Two);

JA 742 (setting forth Counts Four and Seven); JA 743 (setting forth

Counts Ten and Fourteen). After setting forth the counts, the

district judge then used that same correct language when reciting

§ 924(c)(1)(A) to the jury. JA 744.

Moreover, the “in furtherance language” was clearly set forth

in six of the written jury instructions pertaining to the

possession of a firearm offense. See Jury Instruction 23,

(regarding Count Ten), JA 872; Jury Instruction 24 (regarding Count

Thirteen), JA 873; Jury Instruction 20 (regarding Count Two), JA

933; Jury Instruction 21 (regarding Count Four), JA 934; Jury

Instruction 25 (regarding Count Fourteen), JA 935; Jury Instruction

26 (providing the jury with the relevant portion of

§ 924(c)(1)(A)), JA 936. In fact, the “during or in relation to”

substitution was only made in a single written jury instruction,

Instruction Number 27. JA 880. Beyond that, the “in furtherance

language” was also clearly set forth, in bold, on each of the

relevant verdict forms. JA 941 (Counts Two and Four); JA 942

(Count Seven); JA 943 (Count Ten); JA 938 (Count Fourteen). None

14
of the verdict forms used the incorrect “during or in relation to”

language.

In addition, both the prosecutor and the defense attorney for

Bruce Woods recited the correct “in furtherance language” language

multiple times in their closing arguments to the jury. See JA 798-

98 (the government states, four times, that the § 924(c) offenses

involve “the . . . possession of a firearm in furtherance

of . . . .”); JA 800 (the government states, in reference to Count

Fourteen, that the evidence establishes “the possession of a

firearm in furtherance of . . . .”); JA 801 (the government states

“that [Count Fourteen] is the possession in furtherance . . . .”);

JA 834 (Bruce Woods’ defense attorney states that “[t]he question

that you have to address here also is whether, if you believe that

there was control of the gun, do you next believe that the control

of the gun, that the possession of the gun was in furtherance of a

drug conspiracy?”); JA 837 (Bruce Woods’ defense attorney tells

the jury to “[a]sk . . . how the possession of Sergeant Salemi’s

rifle in any way facilitated the carrying out of a felony.”)

Finally, any mistake made by the district judge in employing

the “during or in relation to” language did not broaden the

indictment because the district judge defined those terms in such

a way as to impose the more stringent standard carried by the term

“in furtherance of.” In particular, at the point in his oral

instructions where the district judge made his cross-matching

15
errors, he stated that “[a] firearm can be used in relation to a

felony involving drug trafficking if . . . [f]or example, [the

firearm’s] presence in [the defendant’s] possession in any manner

facilitated the carrying out of the felony.” JA 747 (emphasis

added). One sentence later, the district judge cited “[t]he

collection of drug monies owed a Defendant” as “acts in furtherance

of a [drug trafficking crime].” Id. (emphasis added). The district

judge provided substantively correct definitions in the written

instructions as well. Instruction 29, JA 883 (defining “used or

carried” as “appl[ying] to any use or carrying of a gun that

facilitates, in any manner, the commission of a drug offense”)

(emphasis added); Instruction 31, JA 885 (instructing that “[t]he

defendant is considered to have used a firearm if its presence in

his possession in any manner facilitated the carrying out of the

felony”) (emphasis added).

Thus, even though the district judge at certain points did use

the incorrect statutory terms, the instructional errors here did not

rise to the level of a constructive amendment. See Randall, 171 F.3d

at 203. Therefore, we reject the Woodses’ contention that we must

reverse their convictions on this ground.1

1
The Woodses also contend that the district judge, through his
instructions, constructively amended the indictment by expanding
the predicate “drug trafficking crime” offense for § 924(c) from
distribution to possession with intent to distribute. This claim
also lacks merit. First, the district judge properly instructed
the jury that the relevant “drug trafficking crime” for purposes of
a finding of guilt on the relevant § 924(c) counts was

16
 III.

In addition to the constructive amendment challenge, raised by

both Mark and Bruce Woods, Mark Woods raises additional challenges

to his § 924(c) convictions. He claims first, that there was

insufficient evidence to support his convictions under Counts Four,

Seven, and Ten (because he only “passively received” firearms as

payment for drugs); and second, that his convictions under those

same counts cannot stand because he was not convicted of the

predicate offense of distribution of methamphetamine, but rather of

the lesser included offense of simple possession of methamphetamine.

We address each argument in turn.

A.

Mark Woods contends that there is insufficient evidence

to support his convictions in Counts Four, Seven, and Ten for

possession of a firearm in furtherance of a drug trafficking crime.

18 U.S.C. § 924(c). His argument rests primarily on the contention

that he did not, as a matter of law, “use” a firearm in furtherance

of a drug trafficking crime. See Bailey v. United States, 516 U.S.

137, 148-49 (1995). Rather than “use” firearms in his drug trade,

“distribution of methamphetamine.” JA 745-46. Second, the
district judge properly instructed the jury on the elements of
distribution. JA 749, 888-93. Finally, while the Woodses are
correct that the district judge also issued an instruction on the
crime of possession with intent to distribute, that instruction was
appropriate insofar as conspiracy to commit that offense was
charged in Count One and charged as a predicate offense in Counts
Two and Fourteen.

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Mark contends that he only “passively received” firearms as payment

for drugs. The Supreme Court recently recognized that while the

trading of guns for drugs constitutes “use” for purposes of

§ 924(c), the mere receipt of firearms for drugs does not. Watson

v. United States, 128 S. Ct. 579, 583-86 (2007).

However, whether Mark “used” firearms in his drugs-for-guns

business is irrelevant here, because Mark was not charged with “use”

of a firearm, but rather with “possession” of a firearm. Even if

Mark only traded drugs for guns, he obviously “possessed” firearms,

under any meaning of that term, when he obtained them in the course

of his drugs-for-guns business. See United States v. Rusher, 966

F.2d 868, 878 (4th Cir. 1992) (making clear that possession can be

actual or constructive).

As discussed above, the district judge instructed the jury not

only on the term “possession” under § 924(c), but also on the terms

“use” and “carry” under § 924(c), and this error, as to which there

was again no objection, is perhaps what now spurs Mark Woods’

argument on appeal. Nonetheless, as we have explained, there was

no constructive amendment to the indictment, and therefore Mark was

indicted, convicted, and sentenced for possession of a firearm. The

fact that Mark possessed a firearm in furtherance of his drug

business was more than adequately proven. Curtis Jackson testified

that he traded firearms to Mark for drugs, and that testimony was

buttressed by the seizure of those same firearms from the “green

18
house.” Therefore, we reject Mark’s claim that there was

insufficient evidence to support his § 924(c) convictions for

“possession of a firearm.”

B.

Mark also contends that his convictions under § 924(c) for

Counts Four, Seven, and Ten cannot stand because the jury did not

convict him of the predicate offense of distribution of

methamphetamine charged in Counts Three, Six, and Nine, but rather

convicted him of the lesser included offense of simple possession.

Mark argues that because proof of a predicate offense is an

essential element of a § 924(c) violation, see Randall, 171 F.3d at

205-06, and because the government specified a particular predicate

offense in the indictment -- distribution -- he cannot be convicted

under § 924(c) unless convicted of that predicate offense.

This court has recognized that a defendant’s conviction under

§ 924(c) “does not depend on his being convicted -- either

previously or contemporaneously -- of the predicate offense, as long

as all of the elements of that offense are proved and found beyond

a reasonable doubt.” E.g., United States v. Crump, 120 F.3d 462,

466 (4th Cir. 1997); see also United States v. Hopkins, 310 F.3d

145, 152-53 (4th Cir. 2002). Here, the jury was specifically

instructed on distribution in violation of 21 U.S.C. § 841(a)(1) as

the predicate offense, and the evidence was more than sufficient for

the jury to find beyond a reasonable doubt that Mark distributed

19
methamphetamine. Indeed, both Curtis Jackson and Allen Keyser --

two of Mark’s customers -- testified that they purchased

methamphetamine from Mark within or about June 2002.

Moreover, the Supreme Court has made clear that “inconsistent

verdicts -- even verdicts that acquit on the substantive offense --

should not necessarily be interpreted as a windfall to the

Government at the defendant’s expense.” United States v. Powell,

469 U.S. 57, 64 (1984). The Court stated that it is just as likely

that “the jury, convinced of guilt, properly reached its conclusion

on the compound offense, and then through mistake, compromise, or

lenity, arrived at an inconsistent conclusion on the lesser

offense.” Id. Accordingly, seemingly inconsistent conclusions

should not be set aside unless the evidence is insufficient to

“support any rational determination of guilty beyond a reasonable

doubt.” Id. at 67. Again, there was ample evidence in this case

that Mark committed the specified predicate offense, distribution

of methamphetamine. Thus his convictions under § 924(c) stand.2

2
We also find without merit Mark’s additional contention that
his § 924(c) convictions cannot stand because Count Two is
multiplicitous with Counts Four, Seven, and Ten. Specifically,
Mark argues that the jury “could easily have based its verdict in
Count Two on the same firearm or firearms for which it convicted
Mark in Counts Four, Seven, and Ten . . . .” To begin, this court
has made clear that multiple acts over the course of a single
continuing offense, even when involving the same firearm, will
support multiple § 924(c) convictions. United States v. Camps, 32
F.3d 102, 107 (4th Cir. 1994). Moreover, Count Two was temporally
broader than Counts Four, Seven, and Ten, and thus did not
necessarily involve the same firearms or even the same drug
offenses as Counts Four, Seven, and Ten. Further, testimony

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 IV.

We have reviewed the Woodses’ remaining claims with care, and

we find that they lack merit. In particular, Mark’s contention that

it was not established that he had been “convicted in any court of

a crime punishable by imprisonment for a term exceeding one year”

for purposes of 18 U.S.C. § 922(g) is unpersuasive, given that he

stipulated to that very element at trial. See United States v.

Clark, 993 F.2d 402, 405-06 (4th Cir. 1993) (holding that an

identical stipulation constituted a waiver of that element of

§ 922(g)). Moreover, we reject Bruce’s claim that the district

court should not have imposed the 360-month sentence enhancement to

his § 924(c) conviction because, as this circuit and others have

recognized, the firearms characteristics provisions set out in

§ 924(c)(1)(B) are sentencing factors to be determined by the court.

See, e.g., Harrison, 272 F.3d at 225-226; see also Harris v. United

States, 536 U.S. 545, 552 (2002).

Therefore, we uphold the Woodses’ convictions and sentences.

The judgment of the district court is

AFFIRMED.

presented to the grand jury, evidence presented at trial, and the
prosecutor’s closing argument made clear that Count Two involved a
firearm that Mark had sold to a man named John Sorrells in exchange
for methamphetamine, and that Counts Four, Seven, and Ten involved
four firearms that Mark accepted as payment for methamphetamine
from one of his regular customers, Curtis Jackson, in June of 2002.
Finally, the jury was instructed that Counts Four, Seven, and Ten
involved the Jackson firearms, but not that Count Two involved
those firearms. Thus, we reject Mark’s multiplicity argument.

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