UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4840
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH WAYNE GRAGG,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:05-cr-00220-RLV)
Submitted: September 10, 2008 Decided: September 26, 2008
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ross Richardson, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina; Matthew T. Martens, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On July 25, 2005, Kenneth Wayne Gragg was charged in a
four count indictment. Counts One and Two charged Gragg with
possession of methamphetamine with intent to distribute, in
violation of 21 U.S.C.A. § 841(b) (West 2000 & Supp. 2008). Count
Three charged Gragg with being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g) (2000). Finally, Count Four
charged Gragg with knowingly and unlawfully using and carrying a
firearm during and in relation to a drug trafficking crime and
possessing a firearm in furtherance of a drug trafficking crime.
On July 25, 2005, the Government also filed a notice of intent to
seek enhanced penalties pursuant to 21 U.S.C. § 851 (2000).
On the day of trial, Gragg pled guilty, without the
benefit of a plea agreement, to Counts One, Two, and Three. Gragg
then proceeded to trial on Count Four. At the conclusion of the
evidence, the jury found Gragg guilty of Count Four. Five months
after his trial, Gragg filed a pro se motion to withdraw his guilty
pleas. Following a hearing on Gragg’s motion, the district court
denied the motion and imposed sentence on Gragg. Gragg timely
noted his appeal. We affirm the judgment of the district court.
On appeal, Gragg first contends that the theory of
constructive possession cannot sustain a § 924(c) conviction, and
therefore, the district court erred in instructing the jury that,
to convict him of the § 924(c) charge, the jury could find that he
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constructively possessed a .22 caliber handgun. Gragg failed to
object to the instruction in the district court. Accordingly, his
claim is reviewed only for plain error. United States v. Hastings,
134 F.3d 235, 259 (4th Cir. 1998). Plain error review requires the
defendant establish that: (1) there was error; (2) the error was
“plain;” and (3) the error affected the defendant’s substantial
rights. United States v. Olano, 507 U.S. 725, 732 (1993). The
term “plain” is “synonymous with ‘clear’ or, equivalently,
‘obvious’.” Id. at 734. “At a minimum, the Court of Appeals
cannot correct an error pursuant to Rule 52(b) unless the error is
clear under current law.” United States v. Brewer, 1 F.3d 1430,
1435 (4th Cir. 1993) (quoting Olano, 507 U.S. at 734) (emphasis in
the original)). Even if the defendant makes this required showing,
“Rule 52(b) leaves the decision to correct the forfeited error
within the sound discretion of the court of appeals, and the court
should not exercise that discretion unless the error seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Olano, 507 U.S. at 732 (quoting United States v.
Young, 470 U.S. 1, 15 (1985) (internal quotations omitted)).
Four of our sister circuits have determined that a
§ 924(c) conviction for possession of a firearm during and in
relation to a drug trafficking crime may be sustained under a
constructive possession theory. United States v. Maldonado-Garcia,
446 F.3d 227, 231 (1st Cir. 2006); United States v. Booker, 436
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F.3d 238, 241 (D.C. Cir. 2006); United States v. Lott, 310 F.3d
1231, 1247 (10th Cir. 2002); United States v. Mackey, 265 F.3d 457,
460 (6th Cir. 2001). Moreover, Gragg fails to cite a single case
that holds constructive possession may not be used to support a
conviction under the possession, as opposed to the use or carry,
prong of § 924(c). See United States v. Green, 254 F.3d 167, 170
(D.C. Cir. 2001). Accordingly, Gragg fails to show that any error
by the district court in instructing the jury was clear under
current law, and his first claim is without merit.
Gragg next contends that the district court erred because
its instructions to the jury constructively amended the indictment.
The indictment charged Gragg with using and carrying and possessing
a firearm in violation of § 924(c); however, the district court
instructed the jury that Gragg could be convicted under § 924(c) if
he used or carried or possessed the firearm. It is well settled
that this type of disjunctive instruction and constructive charge
is appropriate where, as in this case, the statute at issue is
phrased disjunctively. See United States v. Montgomery, 262 F.3d
233, 242 (4th Cir. 2002). Hence, we reject Gragg’s contention.
Finally, Gragg contends that the district court abused
its discretion in denying his motion to withdraw his guilty pleas.
A defendant may withdraw a guilty plea before sentence is imposed
if “the defendant can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Six factors to be
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considered in granting or denying a motion to withdraw a guilty
plea are:
(1) whether the defendant has offered credible evidence
that his plea was not knowing and voluntary, (2) whether
the defendant has credibly asserted his legal innocence,
(3) whether there has been a delay between the entering
of the plea and the filing of the motion, (4) whether
defendant has had close assistance of competent counsel,
(5) whether withdrawal will cause prejudice to the
government, and (6) whether it will inconvenience the
court and waste judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991).
The record reveals that the district court considered the
factors delineated in Moore and, contrary to Gragg’s contention,
did not abuse its discretion by denying his motion. Accordingly,
we affirm the judgment of the district court. We dispense with
oral argument as the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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