United States v. Avery

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 9 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 00-3262
JONATHAN AVERY,

Defendant-Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 00-CR-10036-MLB)

Timothy J. Henry, Assistant Federal Public Defender (David J. Phillips, Federal
Public Defender, with him on brief), Wichita, Kansas, for Defendant-Appellant.

Randy Hendershot, Assistant United States Attorney (D. Blair Watson, Assistant
United States Attorney, and Jackie N. Williams, United States Attorney, with him
on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Before EBEL, Circuit Judge, and HALL * and BRORBY, Senior Circuit Judges.

EBEL, Circuit Judge.

*
The Honorable Cynthia Holcomb Hall, Senior Circuit Judge, United States
Court of Appeals for the Ninth Circuit, sitting by designation.
 On March 7, 2000, a federal grand jury issued an eight-count indictment

against Defendant-Appellant Jonathan Avery. Count 1 charged Mr. Avery with

possessing with the intent to distribute a “mixture or substance” containing

thirteen grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Count 2

indicted Mr. Avery for possessing with the intent to distribute approximately

twenty grams of mixture or substance containing cocaine, in violation of 21

U.S.C. § 841(a)(1), and Count 3 alleged that Mr. Avery possessed with the intent

to distribute approximately four grams of a mixture or substance containing

cocaine base, also in violation of § 841(a)(1). Counts 4, 5, 6, 7, and 8 of the

indictment all accused Mr. Avery of having “knowingly possessed” specific

firearms “during and in relation to a drug trafficking crime,” in violation of 18

U.S.C. § 924(c)(1).

A few months after being indicted, a federal jury convicted Mr. Avery on

all counts. The United States District Court for the District of Kansas

subsequently sentenced Mr. Avery to a total of 198 months in prison and a total of

four years of supervised release, with some of the sentences on the individual

counts running concurrently, and some of the individual sentences running

consecutively.

Mr. Avery now appeals his convictions and sentences on six grounds. First,

he alleges that the district court erred in not suppressing evidence found in a

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search of his home, contending that the affidavit supporting the search warrant

contained “false and reckless” information. Second, he contends that his

conviction and sentence on one of the weapons charges should be set aside in the

wake of the Supreme Court’s decision in Castillo v. United States, 530 U.S. 120

(2000). Third, he argues that all five of his convictions under § 924(c)(1) for

possessing a firearm in furtherance of a drug trafficking crime must be reversed

because of deficiencies in the indictment. Fourth, he asserts that all of his

convictions should be overturned because they were not supported by sufficient

evidence. Fifth, he contends that one of his cocaine base convictions must be set

aside because the prosecution violated a motion in limine order by inquiring at

trial into a statement he made to police after being placed under arrest but before

receiving his Miranda warnings. Finally, he raises a claim based on the Supreme

Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000).

We reject all of Mr. Avery’s arguments, and we affirm his convictions and

sentences on all counts.

I. Background

On the evening of December 2, 1997, Paul Shade, an officer with the

Wichita Police Department, was conducting surveillance on a residence suspected

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of housing drug trafficking activity. At some point that night, Officer Shade

observed Mr. Avery leave the residence, get behind the wheel of a vehicle

registered in Mr. Avery’s name, and depart the scene. Another man sitting in the

front passenger seat of the car rode with Mr. Avery. Because of previous contacts

with Mr. Avery, Officer Shade suspected that Mr. Avery was driving with a

suspended license, and he began following the car. After receiving confirmation

that, in fact, authorities had suspended Mr. Avery’s license, Officer Shade

stopped the vehicle.

Officer Shade then approached the car and asked Mr. Avery for his driver’s

license and proof of insurance. As Mr. Avery opened the glove compartment to

search for the requested documents, Officer Shade observed two baggies

containing a white powdery substance protruding from the open pocket of Mr.

Avery’s windbreaker. Based on his police experience, Officer Shade immediately

believed the substance was powder cocaine and placed Mr. Avery under arrest.

Subsequent police tests revealed that the baggies contained 3.03 grams of cocaine,

though Mr. Avery was never charged in connection with these narcotics.

After arresting Mr. Avery, Officer Shade asked him if there were any other

drugs in the car. Mr. Avery responded that the car’s glove compartment

contained “crack cocaine,” but he denied owning these drugs. Officer Shade

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proceeded to open the glove compartment, where he discovered 13.72 grams of

cocaine base. 1

On January 30, 2000, a little over two years after the December 1997 arrest,

a confidential informant told agents “assigned to the Drug Enforcement

Administration State and Local Task Force” that a man identified by the

informant as “Big John” was “selling crack cocaine” from his Wichita home at

1534 North Broadview. The informant specifically told officers that on January

30, 2000, he had seen four ounces of cocaine at the residence. After reviewing

police photos, the confidential informant identified Jonathan Avery as “Big

John.”

Based on the information obtained from the confidential informant, agents

“formulated plans to make a controlled purchase of crack cocaine from Avery.”

On February 2, 2000, an agent strip-searched the confidential informant, found

him free of “currency and contraband,” gave him “$100.00 in recorded money

issued by the Wichita Police Department,” and took him to 1534 North

Broadview. Agents then watched as the confidential informant entered the

residence and, after approximately eight minutes, exited the home. The

informant, who “remained under constant surveillance,” 2 then rendezvoused with

1
This cocaine served as the basis of Count I of Mr. Avery’s indictment.
2
According to the record, police placed a wire on the informant for “safety
(continued...)

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a law enforcement officer and handed the agent a package “containing a white,

rock substance, which later field-tested positive for the presence of cocaine.” An

agent then searched the confidential informant a second time, and the informant

was again found free of currency or other contraband.

Later that same day, an agent submitted to a federal magistrate judge an

application for a warrant to search Mr. Avery’s home. 3 The affidavit

accompanying the search warrant application described the controlled buy in the

detail discussed above, and it noted that on ten previous occasions the

confidential informant had supplied law enforcement authorities with accurate

information. The affidavit also explained that the confidential informant had used

and sold drugs in the past, though it failed to mention that the informant had a

lengthy criminal history that stretched several decades and included convictions

for crimes involving theft, forgery, and dishonesty.

Based on this and other information contained in the affidavit, the

magistrate judge issued a warrant to search 1534 North Broadview, and agents

then executed the search warrant. Mr. Avery was not at the residence at the time

2
(...continued)
purposes.” Apparently, the wire did not transmit properly. Agents could hear
that a conversation was occurring, but they could not understand the content of
the conversation.
3
Mr. Avery concedes that he lived at 1534 North Broadview.

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of the search, but his eighteen-year old girlfriend and her ten-year old brother,

both of whom lived with Mr. Avery, were at the home.

During the subsequent search, agents uncovered a .22 caliber rifle with a

folding stock located in a closet near the front door. 4 In a small, twelve-foot-by-

fourteen-foot bedroom located in the southwest portion of the home, officers

discovered 20.3 grams of cocaine and 4.07 grams of cocaine base sitting in a plate

atop a dresser. 5 In this same plate sat several bullets, and within the dresser on

which the plate sat, police found a .380 caliber pistol. 6 Police found a loaded .40

caliber Glock pistol between the mattress and box spring of the bed next to the

dresser. 7 The closet of this bedroom also contained firearms, including a slug-

loaded 12 gauge shotgun with pistol grips and a loaded Colt AR 15 .223 caliber

rifle, which also had a large capacity magazine. 8 A small safe containing cash,

including four of the five twenty-dollar bills that the confidential informant had

used to purchase drugs earlier in the evening, was also located in this closet.

4
This rifle served as the basis for Count 7 of the indictment.
5
The 20.3 grams of cocaine formed the basis for Count 2 of Mr. Avery’s
indictment, and the 4.07 grams of cocaine base served as the basis for Count 3.
6
This pistol served as the basis for Count 8 of the indictment.
7
This weapon served as the basis for Count 4 of the indictment.
8
These weapons formed the basis for Counts 5 and 6 of the indictment.

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 Besides the weapons, cash, and narcotics, agents found a set of scales and

two boxes of baggies in the southwest bedroom. No other drugs or drug

paraphernalia were uncovered in the home.

Police officers later interviewed Mr. Avery, who had been arrested away

from the home on an outstanding warrant immediately before the search

commenced. During this interview, he (1) admitted owning the weapons, (2)

identified the weapons, (3) acknowledged selling cocaine from the residence

during the previous two-to-three years, and (4) stated that he sometimes

personally delivered the cocaine to his customers. 9

II. Search Warrant

Mr. Avery first argues on appeal that the evidence obtained during the

police search of the 1534 North Broadview residence must be suppressed because

the affidavit supporting the search warrant application omitted information

concerning the credibility of the government’s confidential informant.

Specifically, Mr. Avery argues that the law enforcement agents failed to inform

the federal magistrate judge who authorized the search warrant that the informant

Mr. Avery made these admissions after receiving his Miranda warnings.
9

He does not challenge the admissibility of these statements on appeal.

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had a “lengthy criminal history” that spanned several decades and included

“thefts, forgeries, or evidence of dishonesty or false statement.” In light of these

omissions, Mr. Avery contends, the agents violated the rule announced in Franks

v. Delaware, 438 U.S. 154 (1978).

A. Franks Standard

“Under Franks, a hearing on the veracity of the affidavit supporting a

warrant is required if the defendant makes a substantial showing that the affidavit

contains intentional or reckless false statements and if the affidavit, purged of its

falsities, would not be sufficient to support a finding of probable cause.” United

States v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997) (citing Franks, 438 U.S.

at 155-56). “The standards of deliberate falsehood and reckless disregard set

forth in Franks apply to material omissions, as well as affirmative falsehoods.”

United States v. McKissick, 204 F.3d 1282, 1297 (10th Cir. 2000). If, after

considering the evidence presented at a Franks hearing, the district court

concludes by a preponderance of the evidence that the affidavit contains

“intentional or reckless false statements,” Kennedy, 131 F.3d at 1376, or

“material omissions,” McKissick, 204 F.3d at 1297, “then the district court must

suppress the evidence obtained pursuant to the warrant.” Id. If, however, the

district court concludes that the omitted information would not have altered the

magistrate judge’s decision to authorize the search, then the fruits of the

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challenged search need not be suppressed. Id. at 1297-98; Kennedy, 131 F.3d at

1376.

In this case, the district court held a Franks hearing on the alleged

omissions in the affidavit and, after considering the evidence presented at the

hearing, denied Mr. Avery’s motion to suppress. According to the court, Mr.

Avery “totally failed to establish beyond or by a preponderance of the evidence”

that the affidavit supporting the search warrant contained reckless or false

statements. The court, perhaps reassessing its decision to hold a hearing in the

first place, concluded that Mr. Avery failed to make even a sufficient offer of

proof to justify holding a Franks hearing and found Mr. Avery’s testimony at the

hearing “not to be credible” and the testimony of two agents at the hearing “to be

credible.”

We review de novo the ultimate determination of reasonableness under the

Fourth Amendment. United States v. Long, 176 F.3d 1304, 1307 (10th Cir.

1999). In conducting this de novo review, “we consider the totality of

circumstances and view the evidence in a light most favorable to the government.

We accept the district court’s factual findings unless those findings are clearly

erroneous.” Id. (citations omitted). We will not reweigh the evidence presented

to the district court, second guess the district court’s credibility assessments, or

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question “reasonable inferences” the district court drew from the evidence. Id.

Applying this standard, we affirm the district court’s ruling.

B. Application

As discussed earlier, the affidavit accompanying the search warrant

application outlined in detail the confidential informant’s allegations and the

controlled buy. The affidavit, as Mr. Avery emphasizes, also discussed the

informant’s reliability. It explained that local law enforcement agents and agents

from the Drug Enforcement Administration had “previously utilized this CI for

the successful controlled purchases of illegal drugs more than ten (10) times,” and

that, on each occasion, “the information provided by the CI in reference to the

intended targets of investigation proved to be reliable.” The affidavit also noted

that the informant’s description of “the concealment methods and packaging

methods of the drugs” proved “accurate” on “at least three prior occasions.”

In Mr. Avery’s view, however, the affidavit was fatally deficient because it

failed to balance its discussion of the informant’s past reliability with a

discussion of the informant’s lengthy criminal history, about which officers knew

at the time they submitted the search warrant application.

Certainly, the basis of a confidential informant’s knowledge, as well as his

reliability, are important factors in deciding whether information in an affidavit

supports a finding of probable cause for a search. See Illinois v. Gates, 462 U.S.

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213, 233 (1983); United States v. Tuter, 240 F.3d 1292, 1295 (10th Cir. 2001).

However, the complete failure of an affidavit to discuss the reliability of an

informant does not automatically preclude a finding of probable cause, United

States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) (“When there is

sufficient independent corroboration of an informant’s information, there is no

need to establish the veracity of the informant.”); United States v. Sturmoski, 971

F.2d 452, 457 (10th Cir. 1992) (same), nor is the affidavit’s failure to discuss the

informant’s criminal history when outlining why the informant is reliable

automatically fatal. See United States v. Hager, 969 F.2d 883, 887 (10th Cir.

1992) (upholding affidavit despite omission of “informant’s involvement in

criminal activity”), abrogated on other grounds by Bailey v. United States, 516

U.S. 137 (1995).

Rather, courts reviewing the alleged omission of information bearing on an

informant’s credibility ask whether, assuming the magistrate judge had been

apprised of the omitted information, the judge still “would have found probable

cause to issue the search warrant.” Kennedy, 131 F.3d at 1377; McKissick, 204

F.3d at 1297 (same). In asking this question, it is important to keep in mind that

“[a] magistrate judge’s task in determining whether probable cause exists to

support a search warrant ‘is simply to make a practical, common-sense decision

whether, given all the facts and circumstances set forth in the affidavit before

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him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying

hearsay information, there is a fair probability that contraband or evidence of a

crime will be found in a particular place.’” Kennedy, 131 F.3d at 1378 (quoting

Gates, 462 U.S. at 238)).

In this case, we conclude that even if the affidavit had discussed the

confidential informant’s criminal history in more detail, the magistrate judge

would nonetheless have issued the search warrant. Several factors inform our

conclusion. First, the affidavit, though not explicitly mentioning the confidential

informant’s criminal history, informed the magistrate judge that the informant had

used and sold cocaine in the past, thus putting the magistrate judge on notice that

the “confidential informant was not a model citizen” and that he had previously

violated laws. United States v. Hall, 171 F.3d 1133, 1143 (8th Cir. 1999)

(internal quotation marks omitted). Second, magistrate judges, courts have

observed, often know, even without an explicit discussion of criminal history, that

many confidential informants “suffer from generally unsavory character” and may

only be assisting police to avoid prosecution for their own crimes. United States

v. Novaton, 271 F.3d 968, 985 (11th Cir. 2001) (internal quotation marks and

brackets omitted); see also Hall, 171 F.3d at 1143 (explaining that, “as a matter of

law, . . . courts issuing search warrants are aware of the possibility that a

confidential informant may be seeking leniency in his or her own situation”).

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Third, notwithstanding the questionable character of many informants, the

Supreme Court has held that a search warrant may still be issued when “a

particular informant is known for [his] unusual reliability.” Gates, 462 U.S. at

233. In this case, the confidential informant had provided reliable information on

ten separate occasions. Given the general background knowledge magistrate

judges have about confidential informants, the specific information the magistrate

judge had about this confidential informant’s prior drug activity, and this

informant’s past reliability, it is improbable that a specific recitation of the

confidential informant’s criminal history would have influenced the magistrate

judge’s decisionmaking process or assessment of the informant’s veracity.

Additionally, the affidavit provided the magistrate judge with enough

independent corroboration that, in all likelihood, the search warrant for 1534

North Broadview still would have issued. See Danhauer, 229 F.3d at 1006;

Sturmoski, 971 F.2d at 457. In particular, the affidavit’s description of the

controlled buy, performed the same day as the agents submitted the search

warrant request, strongly corroborated the informant’s claim that drugs were

being sold from the residence by Mr. Avery. 10 In light of this corroboration, we

10
Although the confidential informant at issue in this appeal executed the
buy, the agents searched him before and after the buy for contraband and cash,
kept him under surveillance throughout much of the transaction, and met him
immediately after the transaction ended, at which point he produced the just-
purchased crack cocaine. Under such circumstances, the controlled buy is clearly
(continued...)

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cannot conclude that inclusion of a more detailed discussion of the confidential

informant’s criminal history would have affected the magistrate judge’s probable

cause finding. See United States v. Flagg, 919 F.2d 499, 501 (8th Cir. 1990) (per

curiam) (explaining that omission of confidential informant’s criminal record and

plea agreement was “not clearly critical to the finding of probable cause” where

“independent police investigation corroborated the information supplied by the

confidential informant”).

Accordingly, we reject Mr. Avery’s claim that the evidence obtained from

the search of 1534 North Broadview should be suppressed.

III. Castillo v. United States Claim

Mr. Avery next alleges that his conviction under Count 6 of the indictment,

or, at the very least, his subsequent sentence under Count 6, must be vacated and

remanded in light of the Supreme Court’s decision in Castillo v. United States,

10
(...continued)
corroborative of the informant’s allegations, even if the informant himself bought
the drugs. See, e.g., United States v. Genao, 281 F.3d 305, 309 (1st Cir. 2002).
The fact that the malfunctioning recording device rendered the conversation
inside the home inaudible does not, under these circumstances, negate the
controlled buy’s corroborative value. See United States v. Formaro, 152 F.3d
768, 770 (8th Cir. 1998) (finding controlled buy by confidential informant
corroborative where agents kept informants under constant surveillance “except
for the time they were with [the drug dealer]”).

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530 U.S. 120 (2000). In particular, Mr. Avery argues that the indictment for

Count 6, which charged Mr. Avery with knowingly possessing a “Colt AR 15 .223

Caliber rifle . . . during and in relation to a drug trafficking crime,” failed to

allege that the firearm was a “semi-automatic assault weapon.” Yet when he was

sentenced for possessing the gun in violation of 18 U.S.C. § 924(c)(1), which

generally imposes a mandatory minimum sentence of five-years imprisonment, the

district court invoked a statutory subsection, §924(c)(1)(B)(i), which raises the

mandatory minimum sentence from five years to ten years where the “firearm

possessed” was a “semiautomatic assault weapon.” Id. Neither the indictment,

nor the instructions submitted to the jury discussed whether the Colt AR 15 was a

“semiautomatic assault weapon,” and, therefore, Mr. Avery contends, his rights

under Castillo were violated.

The government, without explanation or analysis, concedes that the Castillo

decision requires vacating Mr. Avery’s sentence for Count 6. A party’s

concession of legal error, however, cannot, standing alone, justify reversing a

district court, nor can that concession relieve this court of its obligation to

evaluate the merits of the legal issue presented on appeal. United States v.

Furman, 112 F.3d 435, 438 n.2 (10th Cir. 1997). In this case, we find Mr.

Avery’s invocation of Castillo erroneous. Consequently, contrary to both parties’

suggestion, we affirm Mr. Avery’s conviction and sentence on Count 6.

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 A. Subsequent Revision of § 924(c)

In Castillo, the Supreme Court, interpreting an earlier version of

§ 924(c)(1), held that “the statutory references to particular firearm types in

§ 924(c)(1) . . . define . . . separate crime[s],” and, therefore, that “the indictment

must identify the firearm type and a jury must find that element proved beyond a

reasonable doubt.” 530 U.S. at 123. The statute at issue in Castillo, however,

differed fundamentally from the one under which Mr. Avery was convicted and

sentenced, see United States v. Harrison, 272 F.3d 220, 225 (4th Cir. 2001);

United States v. Barton, 257 F.3d 433, 442 (5th Cir. 2001); United States v. Riley,

250 F.3d 1303, 1305-06 (11th Cir. 2001) (per curiam); United States v. Sandoval,

241 F.3d 549, 551-52 & n.1 (7th Cir. 2001), cert denied, 122 S.Ct. 649 (2001), a

fact neither the government nor Mr. Avery addresses. The pre-1998 version of

§ 924(c)(1) that the Court interpreted in Castillo provided that:

Whoever, during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm, shall . . . be sentenced
to imprisonment for five years, and if the firearm is a short-barreled
rifle [or a] short-barreled shotgun to imprisonment for ten years, and
if the firearm is a machinegun, or a destructive device, or is equipped
with a firearm silencer or a firearm muffler, to imprisonment for
thirty years.

Castillo, 530 U.S. at 122 (quoting 18 U.S.C. § 924(c)(1) (1988 ed., Supp. V)

(alterations in original). Given this statutory language, as well as the overall

structure of the statute and the legislative history, the Court reasoned that this

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version of § 924(c)(1) created independent substantive crimes depending upon the

characteristics of the relevant weapon. In particular, the Court noted that this

provision placed weapon type in the same sentence that defined the relevant

offense (using or carrying a weapon during and in relation to a crime of violence

or a drug trafficking crime), rather than “[breaking up [weapon types] with dashes

or separat[ing them] into subsections,” as the statute did with other sentencing

factors, such as “recidivism,” “concurrent sentences,” and “parole.” Id. at 125.

In 1998, however, Congress amended and substantially revised § 924(c)(1),

a fact recognized by the Court in Castillo. 11 See 530 U.S. at 125. Unlike the

version at issue in Castillo, the 1998 Amendments “separate[d] the substantive

crime from the penalty provisions and plac[ed] those penalty provisions into

different subsections.” Riley, 250 F.3d at 1306; see also Castillo, 530 U.S. at

125. Additionally, the revised version no longer imposed a “determinate statutory

sentence” that a defendant had to receive if he was found to possess a particular

type of firearm. Harrison, 272 F.3d at 225. Instead, the post-1998 statute sets a

maximum penalty for a § 924(c)(1) violation of life imprisonment and specifies

that a defendant found to possess a particular type of weapon will receive a

11
Mr. Avery was indicted for violating § 924(c)(1) in 2000, and the revised
version of § 924(c)(1) became effective on November 13, 1998. Riley, 250 F.3d
at 1306. Although the Supreme Court issued its Castillo decision in 2000, the
defendants in that case were indicted and tried under the pre-1998 version of
§ 924(c)(1).

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specific mandatory minimum prison sentence. Id. at 225-26. The specific

§ 924(c)(1) subsection at issue in this case, § 924(c)(1)(B)(i), for example, now

declares that if “the firearm” at issue was “a short-barreled rifle, short-barreled

shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term

of imprisonment of not less than 10 years.” 18 U.S.C. § 924(c)(1)(B)(i) (2000)

(emphasis added).

In light of these changes, most courts reviewing the revised § 924(c)(1)(B)

have concluded that the characteristics of the particular firearm(s) used, carried,

or possessed by a defendant are “sentencing factors” that trigger certain

mandatory minimum sentences, rather than elements of a separate and distinct

crime, which must be alleged in an indictment and proven beyond a reasonable

doubt, as Castillo held. Harrison, 272 F.3d at 226; Riley, 250 F.3d at 1306;

Sandoval, 241 F.3d at 552; cf. Harris v. United States, —S.Ct.—, 2002 WL

1357277 (June 24, 2002) (holding that the revised § 924(c)(1)(A) defines

sentencing factors, as opposed to elements of an offense); Barton, 257 F.3d at 443

(same).

B. Mandatory Minimums

Deeming weapon type a sentencing factor does not, however, fully

foreclose Mr. Avery’s Castillo-based argument. Indeed, Mr. Avery never directly

refutes our sister circuits’ interpretation of the revised § 924(c)(1), and, at times,

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he appears to concede implicitly, as these circuits have found, that the version of

§ 924(c)(1) under which he was convicted and sentenced treats weapon types as a

sentencing factor implicating certain mandatory minimum sentences. 12 Instead, he

alludes to the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466

(2000), and argues that, regardless of whether weapon type defines separate

offenses or is merely a sentencing factor, weapon type must still be alleged in the

indictment, submitted to a jury, and found beyond a reasonable doubt if the

mandatory minimum provisions of § 924(c)(1) are to be invoked by a court.

Apprendi held that, “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. As Mr.

Avery implies, Apprendi eschewed narrow, formalistic distinctions between

“elements” of an offense and “sentencing factors.” See 530 U.S. at 494.

Recently, however, the Supreme Court ruled that Apprendi’s rationale does not

apply where a fact increases a defendant’s mandatory minimum sentence but does

not increase the maximum statutory penalty facing a defendant. Harris, 2002 WL

1357277; see also United States v. Lujan, 268 F.3d 965, 969 (10th Cir. 2001)

(collecting circuit court opinions holding that Apprendi does not apply in the

12
In his opening brief, for example, Mr. Avery discusses how
§ 924(c)(1)(B)(i) exposes him “to a greater mandatory minimum sentence of ten
years.”

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mandatory minimum context).

Even if it were not foreclosed by the 1998 revisions to § 924(c) and the

Supreme Court’s Harris decision, Mr. Avery’s Castillo argument would fail.

Count 6 of the indictment plainly alleged that Mr. Avery knowingly possessed “a

Colt AR 15 .223 Caliber rifle” in violation of § 924(c)(1), and jury instruction

number seventeen informed the jurors that in order to convict Mr. Avery of a

§ 924(c)(1) violation, they had to first conclude beyond a reasonable doubt that

Mr. Avery possessed “the firearm named in the particular count.” Consequently,

when the jury convicted Mr. Avery of Count 6, it necessarily found beyond a

reasonable doubt that he possessed “a Colt AR 15 .223 Caliber rifle.”

This fact is dispositive, because at the time of Mr. Avery’s arrest and

indictment for the weapons-related charges “semiautomatic assault weapon” was

(and still is) expressly defined in the statute as including “any of the firearms, or

copies or duplicates of the firearms in any caliber, known as . . . Colt AR-15.” 18

U.S.C. § 921(a)(30)(A)(iv); see also United States v. Jamieson, 202 F.3d 1293,

1296 (11th Cir. 2000) (noting that in 1994 “semiautomatic assault weapon” was

defined as including a “Colt AR-15”). Therefore, given the indictment and jury

instructions in this case, once the jury found Mr. Avery guilty of Count 6, the

district court appropriately invoked § 924(c)(1)(B)(i)’s semiautomatic assault

weapon provision; the fact necessary to trigger § 924(c)(1)(B)(i)’s ten-year

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minimum mandatory sentence–that Mr. Avery possessed a Colt AR-15–had been

alleged in the indictment and found by the jury beyond a reasonable doubt. See

Lujan, 268 F.3d at 969.

We therefore affirm Mr. Avery’s conviction and sentence on Count 6,

notwithstanding the government’s willingness to concede legal error.

IV. Other Indictment Challenges

A slightly more complicated issue raised on appeal is whether Mr. Avery’s

five firearm convictions under § 924(c)(1) (Counts 4,5,6,7, and 8) must be

vacated because of deficiencies in the indictment. Section 924(c)(1) punishes

“any person who, during and in relation to any crime of violence or drug

trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm.” 18 U.S.C. § 924(c)(1). A defendant may be charged

for two types of weapon-related offenses under this section. First, a defendant

may be convicted for using or carrying a firearm. We have previously explained

that in order to convict a defendant under § 924(c)(1)’s use or carry prong, the

government must show (1) that the defendant used or carried a firearm and (2)

that the weapon played an “integral role” in the underlying offense. See United

States v. Shuler, 181 F.3d 1188, 1189-90 (10th Cir. 1999). Second, a defendant

- 22 -
may, in certain circumstances, be convicted under § 924(c)(1) for possessing a

firearm. Obtaining a conviction under the “possession” prong of § 924(c)(1)

requires the government to prove (1) that the defendant possessed a firearm and

(2) that the possession was “in furtherance of” a drug trafficking offense or crime

of violence. United States v. Basham, 268 F.3d 1199, 1206 (10th Cir. 2001).

In this case, Mr. Avery was indicted and tried under the “possession” prong

of § 924(c)(1). 13 However, as the government concedes, the indictment was not a

model of clarity, for it alleged that Mr. Avery “knowingly possessed . . . [the

relevant firearm] during and in relation to a drug trafficking crime for which he

may be prosecuted in a court of the United States. In violation of Title 18, United

States Code, § 924(c)(1).” As a cursory reading of the indictment illustrates, the

words “in furtherance of,” which we have treated as a requirement that must be

shown in order to obtain a possession conviction under § 924(c)(1), see Basham,

268 F.3d at 1208; United States v. Iiland, 254 F.3d 1264, 1270 (10th Cir. 2001),

are omitted. Moreover, the indictment employs the “use or carry” prong’s “during

and in relation to” language where the terms “in furtherance of” should have been

used.

At trial, the district court instructed the jury that Mr. Avery could be found

The government concedes that it indicted Mr. Avery under § 924(c)(1)’s
13

possession component. Indeed, neither the indictment nor the jury instructions in
this case ever alleged Mr. Avery used or carried the firearms at issue in violation
of § 924(c)(1), and no evidence was presented at trial supporting such a claim.

- 23 -
guilty of the § 924(c)(1) charges for possession “during and in relation to or in

furtherance of the commission of a drug trafficking crime.” Thus, the district

court, like the indictment, improperly merged elements from § 924(c)(1)’s

“possession” and “use or carry” prongs.

Mr. Avery contends that the omission of the “in furtherance of” language

justifies vacating his convictions for two reasons. First, invoking our panel

decision in United States v. Prentiss (Prentiss I), 206 F.2d 960 (10th Cir. 2000),

he claims that the omission deprives this court of jurisdiction. Second, in a

slightly altered version of his jurisdictional claim, he argues that the district

court’s subsequent jury instructions constructively amended the prior indictment

and “permitted the jury to convict under a theory not charged by the government.”

While we by no means endorse the poor quality of the indictment and jury

instructions in this case, we find, for the reasons discussed below, Mr. Avery’s

arguments unavailing.

A. Jurisdiction Claim

In light of recent precedent, we can dispense easily with Mr. Avery’s

jurisdictional claims. In his briefs, Mr. Avery invokes our decision in Prentiss I

in support of his claim that alleged defects in his indictment require the automatic

reversal of his § 924(c)(1) convictions. At the time Mr. Avery briefed this

appeal, Prentiss I was binding precedent in this circuit, and that decision

- 24 -
suggested, as Mr. Avery argues, that the failure of an indictment to allege all the

essential elements of an offense “is a jurisdictional defect requiring dismissal,

despite citation of the underlying statute in the indictment.” 206 F.3d at 965

(internal quotation marks omitted).

After Mr. Avery filed his briefs in this appeal, however, this court, sitting

en banc, reversed Prentiss I’s jurisdictional analysis in a six-to-four decision. See

United States v. Prentiss (Prentiss II), 256 F.3d 971, 981 (10th Cir. 2001) (en

banc). In reaching this conclusion, the en banc majority explained, “An

indictment’s failure to allege an element of a crime is not jurisdictional in the

sense that it affects a court’s subject matter jurisdiction, i.e., a court’s

constitutional or statutory power to adjudicate a case.” Id. at 982 (internal

quotation marks omitted).

A unanimous Supreme Court recently endorsed the position adopted by the

en banc majority in Prentiss II in United States v. Cotton, 122 S.Ct. 1781 (2002),

holding “that defects in an indictment do not deprive a court of its power to

adjudicate a case.” Id. at 1785. In the process, the Court distinguished,

overruled, or limited cases relied upon by the majority in Prentiss I and the

dissenters in Prentiss II to support their jurisdictional analysis, including Stirone

v. United States, 361 U.S. 212 (1960), and Ex Parte Bain, 121 U.S. 1 (1887). See

Cotton, 122 S.Ct. at 1785; see also Prentiss II, 256 F.3d at 989-90 (Henry, J.,

- 25 -
dissenting) (arguing the jurisdictional question was controlled by the Stirone and

Bain decisions); Prentiss I, 206 F.3d at 976 (invoking opinion quoting Stirone).

Therefore, Mr. Avery’s claim that his indictment’s omission of the words

“in furtherance of” deprives this court of jurisdiction is foreclosed squarely by

our decision in Prentiss II and the Supreme Court’s ruling in Cotton.

C. Sufficiency of Indictment

Even if the alleged deficiencies in the indictment do not deprive this court

of jurisdiction, the question still remains whether Mr. Avery’s indictment was so

deficient as to mandate reversal.

As a general matter, “[w]e review the sufficiency of an indictment de

novo.” United States v. Gama-Bastidas, 222 F.3d 779, 785 (10th Cir. 2000). “An

indictment need only meet minimal constitutional standards, and we determine the

sufficiency of an indictment by practical rather than technical considerations. An

indictment is sufficient if is sets forth the elements of the offense charged, puts

the defendant on fair notice of the charges against which he must defend, and

enables the defendant to assert a double jeopardy defense.” United States v.

Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997) (citations omitted).

Mr. Avery, however, did not raise his challenge to the omission of the “in

furtherance of” language until after the jury returned its guilty verdict. 14 Where a

14
In his briefs, Mr. Avery argued that he had challenged the sufficiency of
(continued...)

- 26 -
defendant first challenges “the absence of an element of the offense” after a jury

verdict, “the indictment [will be deemed] sufficient if it contains words of similar

import to the element in question.” Id. (internal quotation marks omitted). As

long as the indictment contained words sufficient to inform the defendant of the

charge against him, the indictment will be upheld. Id. at 1206. “[W]e will find

the indictment sufficient unless it is so defective that by any reasonable

construction, it fails to charge the offense for which the defendant is convicted.”

Gama-Bastidas, 222 F.3d at 786 (emphasis added; internal quotation marks

omitted). Because of this liberal construction rule, an indictment challenged for

the first time post-verdict may be found sufficient, even though that indictment

would have been found wanting had it been challenged pre-verdict. Id. at 786

n.5. In addition, where, as here, the defendant “does not contend that he had no

notice” of the offense for which he was being charged, “we will read the

indictment with maximum liberality.” Id. at 786.

As Mr. Avery notes, the terms “in furtherance of” and “in relation to” are

not entirely interchangeable. See United States v. Mackey, 265 F.3d 457, 461

14
(...continued)
the indictment, when he objected to proposed jury instructions on the § 924(c)(1)
counts. The record demonstrates, however, that Mr. Avery only objected to the
terminology of the jury’s instructions; he in no way challenged, or even
referenced, language contained in the indictment, a point Mr. Avery forthrightly
acknowledged at oral argument. He never alleged, for example, that the
challenged jury instructions were inappropriate because they constructively
amended his indictment.

- 27 -
(6th Cir. 2001); Iiland, 254 F.3d at 1271-72; United States v. Ceballos-Torres,

218 F.3d 409, 413 (5th Cir. 2000). The significance of the distinction between

the two terms, however, does not justify reversal in this case. As we noted in

Iiland, the difference between the “in furtherance of” language and the “during

and in relation to” language is only “slight[].” 254 F.3d at 1271. Similarly, the

Sixth Circuit, while recognizing differences between the meanings of “in

furtherance of” and “during and in relation to,” explained that the distinction

between the two standards is “somewhat elusive.” Mackey, 265 F.3d at 461. In

fact, both our Iiland decision and the Sixth Circuit’s Mackey decision proceeded

to evaluate whether relevant conduct could be considered “in furtherance of” a

drug trafficking crime by considering prior case law interpreting § 924(c)(1)’s

“during and in relation to” requirement. See Mackey, 265 F.3d at 461; Iiland, 254

F.3d at 1272-74.

Courts have also emphasized that the “during and in relation to” and the “in

furtherance of” requirements of § 924(c)(1) both serve similar functions: both

mandate that the government prove more than the mere presence of a gun during a

drug trafficking crime. See United States v. Timmons, 283 F.3d 1246, 1253 (11th

Cir. 2002); Iiland, 254 F.3d at 1274; Shuler, 181 F.3d at 1190-91. The “in

furtherance of” language requires the government to show that the weapon

“furthered, promoted or advanced” either a crime of violence or a drug trafficking

- 28 -
crime. Iiland, 254 F.3d at 1274; see also Timmons, 283 F.3d at 1252 (explaining

that a conviction for possession of a firearm in furtherance of a drug trafficking

crime “requires that the prosecution establish that the firearm helped, furthered,

promoted, or advanced the drug trafficking”); Mackey, 265 F.3d at 461

(explaining that the firearm “must promote or facilitate the crime”); Ceballos-

Torres, 218 F.3d at 415 (explaining that the defendant’s possession must

“further[], advance[], or help[] forward the drug trafficking offense”). Put

another way, courts have explained, “[b]y requiring that the possession be ‘in

furtherance of’ the crime, Congress intended a specific nexus between the gun

and the crime charged.” Mackey, 265 F.3d at 462; see also Timmons, 283 F.3d at

1253 (same); Basham, 268 F.3d at 1207 (explaining that there must be a “direct

connection between the firearm and the drug offense”); United States v. Finley,

245 F.3d 199, 203 (2d Cir. 2001) (“[T]he requirement in § 924(c)(1) that the gun

be possessed in furtherance of a drug crime may be satisfied by a showing of

some nexus between the firearm and the drug selling operation.”).

Similarly, we have held that § 924(c)(1)’s “in relation to” language, “‘at a

minimum, clarifies that the firearm must have some purpose or effect with respect

to the drug trafficking crime; its presence or involvement cannot be the result of

accident or coincidence.’” Iiland, 254 F.3d at 1271 (quoting Smith v. United

States, 508 U.S. 223, 238 (1993)). As with the “in furtherance of” requirement,

- 29 -
we have pointed out, the “in relation to clause” is intended to prevent the

punishment of “possession alone.” Id. Consequently, we have explained that the

“during and in relation to” standard requires there to be “a nexus between . . . the

firearm and the underlying offense,” Shuler, 181 F.3d at 1190, the same standard

many courts use when describing the meaning of “in furtherance of.” See

Timmons, 283 F.3d at 1253; Basham, 268 F.3d at 1207; Mackey, 265 F.3d at 462.

The “during and in relation to” nexus will exist, we have noted, “when the

‘defendant avail[s] himself of the weapon and . . . the weapon plays an integral

role in the [underlying offense],’” Shuler, 181 F.3d at 1190 (quoting United States

v. Lampley, 127 F.3d 1231, 1240 (10th Cir. 1997)) (emphasis added). This

“availment” and “integral role” terminology, though not identical to the

requirement that the weapon have “furthered, promoted, or advanced” the

underlying offense, Iiland, 254 F.3d at 1274, certainly carries a similar meaning.

In sum, then, although there may be differences between the meaning of “in

furtherance of” and “during and in relation to,” the two standards appear to carry

substantially the “same import,” namely that there must be a nexus between the

firearm and the alleged crime, and that the mere possession of the firearm by a

person connected to and engaged in a drug trafficking crime is insufficient to

trigger § 924(c)(1). Cf. Dashney, 117 F.3d at 1206 (upholding an indictment that

omitted the word “willful” but did charge the defendant with “knowingly,

- 30 -
intentionally, and unlawfully” acting).

Our conclusion on this score is reinforced by the references in Mr. Avery’s

indictment to § 924(c)(1). Although we have “held that reference to the charging

statute in the body of the indictment [is] not alone a sufficient substitute for the

recitation of an essential element,” Gama-Bastidas, 222 F.3d at 787, we have held

that reference to the statute can be a factor when assessing the sufficiency of an

indictment. 15 Dashney, 117 F.3d at 1206 (citing United States v. Bolton, 68 F.3d

396, 400 (10th Cir. 1995).

Given that there is only a “slight” difference that is “somewhat elusive”

15
Two opinions from our sister circuits pre-dating the addition of the “in
furtherance” of language also bolster our similar import analysis. In United
States v. Ruelas, 106 F.3d 1416 (9th Cir. 1997), a defendant raised a post-verdict
challenge to his § 924(c)(1) indictment, alleging that his indictment was deficient
because it used the term “possess” when it meant to indict him for “using or
carrying” a firearm. Id. at 1418. The Ninth Circuit noted that, under Supreme
Court precedent, the mere possession of a firearm cannot satisfy § 924(c)’s “use”
or “carry” requirements. Id. at 1418-19. Despite the indictments’s use of a term
that required a standard of proof slightly below what was required to prove the
“use” or “carr[iage]” of a firearm, the Ninth Circuit upheld the conviction, in part
because the indictment contained the relevant statutory provision and the
defendant could have resolved any ambiguity in the indictment by challenging it
before entering his guilty plea. Id. Similarly, the Fourth Circuit, in United States
v. Williams, 152 F.3d 294 (4th Cir. 1998), rejected a post-verdict challenge to an
indictment that used the term “possession” rather than “use” or “carry.” Noting
that it must give a liberal construction to an indictment challenged post-verdict,
the court found the defendant’s claim unavailing, reasoning, “[The defendant]
does not contend that [the indictment’s] imprecision made him unable to prepare
an adequate defense, or to be aware of the charge against him, or otherwise
specifically impaired his ability to defend himself. Instead, he simply points out
the discrepancy and complains that it [entitles him to relief].” Id. at 299.

- 31 -
between the meaning of “in furtherance of” and “during and in relation to” in

§ 924(c)(1), that Mr. Avery never alleged that the indictment failed to put him on

notice that he was being prosecuted under § 924(c)(1)’s possession prong, 16 that

Mr. Avery did not challenge his indictment until post-verdict, and that we review

indictments liberally when they are challenged for the first time after a verdict,

we find the deficiencies in his indictment insufficient to warrant reversal.

D. Constructive Amendment

Finally, we consider Mr. Avery’s contention that the subsequent jury

instructions indicating that a defendant could be convicted of a § 924(c)(1)

possession violation if the weapon was “possessed during and in relation to or in

furtherance of” a drug trafficking crime, resulted in a constructive amendment of

the grand jury’s indictment. “A constructive amendment of an indictment occurs

when the terms of the indictment are in effect altered by the presentation of

evidence and jury instructions which so modify essential elements of the offense

charged that there is a substantial likelihood that the defendant may have been

convicted of an offense other than that charged in the indictment.” United States

v. Gauvin, 173 F.3d 798, 805 (10th Cir. 1999) (internal quotation marks omitted).

Mr. Avery’s argument on this score is somewhat difficult to follow, as he never

16
Mr. Avery had never argued, for instance, that he believed he was being
prosecuted for “carrying” or “using” the firearms in furtherance of a drug
trafficking offense.

- 32 -
explains what offense the jury may have convicted him of other than possession

of a weapon in violation of § 924(c)(1), nor does he ever allege that he was

misled about the substance of the crime for which he was being charged. See

United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002) (refusing to

find constructive amendment violation in part because “[a] review of the record

confirms Defendant was not misled by the terms of the indictment.”).

Instead, he seems to allege that “during and in relation to” is so

fundamentally different from “in the furtherance of” that he must have been

convicted under a theory different from the one alleged in the indictment. For the

reasons previously explained, the difference between“during and in relation to”

and “in furtherance of” do not raise a “substantial likelihood” that Mr. Avery “has

been convicted of an offense” or under a theory other than possessing a firearm in

violation of § 924(c)(1). Gauvin, 173 F.3d at 805 (internal quotation marks

omitted).

V. Sufficiency of the Evidence

Mr. Avery broadly asserts that the government failed to present sufficient

evidence to support any of his convictions, though his subsequent discussion of

this argument focuses almost exclusively on Count 1 (cocaine found in the glove

- 33 -
compartment of his car) and Counts 4, 5, 6, 7, and 8 (possession of firearms in

furtherance of drug trafficking crime).

We review de novo whether the prosecution presented sufficient evidence

to support a conviction. United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th

Cir. 1999). In conducting this review, however, we ask whether, “taking the

evidence–both direct and circumstantial, together with the reasonable inferences

to be drawn therefrom–in the light most favorable to the government, a reasonable

jury could find the defendant guilty beyond a reasonable doubt.” Id. (internal

quotation marks omitted). During this review, we will not assess witness

credibility or re-weigh the evidence presented to the jury. See United States v.

McKissick, 204 F.3d 1282, 1289 (10th Cir. 2000); United States v. Beers, 189

F.3d 1297, 1301 (10th Cir. 1999). After reviewing the record, we find Mr.

Avery’s insufficiency of the evidence claims meritless.

B. Possession

A critical element to all of Mr. Avery’s convictions is the concept of

“possession.” Generally speaking, possession of contraband, whether it be drugs

or a firearm, may be either “actual or constructive.” United States v. Hager, 969

F.2d 883, 888 (10th Cir. 1992) (applying constructive possession to drug

conviction under 21 U.S.C. § 841(a)(1)); see United States v. Wahl, 290 F.3d 370,

375-76 (D.C. Cir. 2002) (holding possession of firearm under § 924(c)(1) may be

- 34 -
constructive); United States v. Mills, 29 F.3d 545, 549 (10th Cir. 1994) (applying

constructive possession to weapons charge under 18 U.S.C. § 922(g)).

Constructive possession, we have explained, exists when a person “knowingly has

ownership, dominion, or control over” the particular object. Hager, 969 F.2d at

888; see Mills, 29 F.3d at 549. In “most cases,” constructive possession over an

object “may be inferred if a defendant had exclusive possession of the premises”

where the object is found, but constructive possession may also be found in joint

occupancy cases where the government demonstrates “some connection or nexus

between the defendant and the firearm or other contraband.” Mills, 29 F.3d at

549; see also United States v. Taylor, 113 F.3d 1136, 1145 (10th Cir. 1997)

(noting that in joint occupancy constructive possession cases, “the government

must present some evidence supporting at least a plausible inference that the

defendant had knowledge of and access to the weapon or contraband”) (internal

quotation marks omitted). “Circumstantial evidence may establish constructive

possession.” United States v. Hishaw, 235 F.3d 565, 571 (10th Cir. 2000).

C. Cocaine in Car

Mr. Avery first challenges the sufficiency supporting his conviction for

possessing with the intent to distribute the thirteen grams of cocaine base found

inside the glove compartment of his car on December 2, 1997. Mr. Avery does

not develop this argument in particular detail, but the crux of his claim is that the

- 35 -
cocaine “could [just] have easily” belonged to his passenger. In essence, he

seems to be suggesting, the government never established the required nexus

between Mr. Avery and the crack cocaine found in the glove compartment. We

disagree.

In order to obtain a § 841(a)(1) conviction, “the Government must prove

the defendant: (1) possessed the controlled substance; (2) knew he possessed the

controlled substance; and (3) intended to distribute or dispense the controlled

substance.” McKissick, 204 F.3d at 1291 (citing United States v. Dozal, 173 F.3d

787, 797 (10th Cir. 1999)).

As Mr. Avery appears to suggest, it is well established that a defendant’s

constructive possession over drugs or other contraband cannot be inferred simply

from the fact that he jointly occupied an area where the contraband was

recovered. See Taylor, 113 F.3d at 1146; see also United States v. Reece, 86 F.3d

994, 996 (10th Cir. 1996) (finding evidence insufficient to support possession

conviction where government only demonstrated that defendant drove the car

“containing illegal narcotics” and “was clearly acquainted with [the individual]

. . . on whose person the narcotics were found”). In this case, however, the

government presented at trial additional evidence from which a reasonable jury

could have concluded that Mr. Avery possessed with the intent to distribute the

thirteen grams of cocaine base found in the car’s glove compartment. First, the

- 36 -
vehicle was registered in Mr. Avery’s name, and Mr. Avery was driving the car

immediately before the crack cocaine’s discovery. See McKissick, 204 F.3d at

1291. Second, the government produced Mr. Avery’s February 2000 confession,

in which he stated that he had been selling quantities of cocaine for the past two-

to-three years and that he sometimes personally delivered the cocaine to his

customers. Cf. Hishaw, 235 F.3d at 572 (explaining that prior possession may,

“in certain instances, . . . support an inference of constructive possession”).

Third, minutes before the cocaine was discovered in the car’s glove compartment,

two baggies of cocaine were found in Mr. Avery’s windbreaker. Fourth, Officer

Shade testified that Mr. Avery, although denying ownership, told him that the

glove compartment contained cocaine. 17 Fifth, Officer Shade also testified that

Mr. Avery neither stated nor implied that his passenger owned the cocaine. Cf.

Reece, 86 F.3d at 996 (finding evidence insufficient to support driver’s

possession conviction because, in part, the passenger testified that the he, and not

the driver, owned the narcotics found in the car’s glove compartment). Viewed in

totality, this evidence easily would have allowed a reasonable jury to conclude

beyond a reasonable doubt that Mr. Avery possessed with the intent to distribute

the thirteen grams of cocaine found in the glove compartment of his car.

17
Mr. Avery contends that the admission of this statement violated a motion
in limine order. We address this issue below, but even if we were to conclude
that this statement should have been excluded, we believe the other evidence
introduced by the government was more than sufficient to sustain his conviction.

- 37 -
 D. Cocaine in Home

In passing, Mr. Avery also appears to challenge the sufficiency of the

evidence supporting his convictions on Counts 2 and 3, which charged him with

possessing with the intent to distribute the cocaine and cocaine base found in the

southwest bedroom of 1534 North Broadview in February 2000. Mr. Avery

appears, based on a parenthetical statement in his brief, to argue that, because his

girlfriend also occupied the southwest bedroom, the government did not

adequately connect the drugs to Mr. Avery. In light of the passing and casual

nature of Mr. Avery’s argument, it is not entirely clear he has adequately

preserved this issue for review. See Ambus v. Granite Bd. of Educ., 975 F.2d

1555, 1558 n.1 (10th Cir. 1992), modified on other grounds on reh’g, 995 F.2d

992 (10th Cir. 1993) (en banc); Abercrombie v. City of Catoosa, 896 F.2d 1228,

1231 (10th Cir. 1990). Assuming, however, that he properly preserved the issue

for review, we find his argument unpersuasive.

It is undisputed that Mr. Avery lived at the 1534 North Broadview

residence and occupied the home’s southwest bedroom, where agents found the

cocaine and cocaine base, four weapons, a set of scales, two boxes of sandwich

baggies, and a safe containing quantities of cash, including four twenty-dollar

bills used earlier that day in the controlled buy. Although it is true that

uncontradicted evidence suggests that Mr. Avery’s girlfriend also occupied the

- 38 -
southwest bedroom, Mr. Avery’s admission that he sold cocaine from the

residence, when combined with the evidence uncovered in the bedroom, easily

would have allowed a reasonable jury to conclude beyond a reasonable doubt that

Mr. Avery (1) knew about the cocaine and cocaine base in the home, (2) exercised

dominion and control over the cocaine and cocaine base, and (3) intended to sell

the cocaine and cocaine base. McKissick, 204 F.3d at 1291.

E. Firearms

By far the most significant sufficiency of the evidence claim raised by Mr.

Avery is that the government failed to demonstrate that he possessed the multiple

weapons found inside the residence “in furtherance of” a drug transaction, as

required under § 924(c)(1). Specifically, Mr. Avery argues that the government

only showed (1) that he possessed the firearms and (2) that he possessed drugs. It

never offered, he contends, evidence supporting the conclusion that he used the

weapons to advance or promote drug sales. For the reasons discussed below, we

reject Mr. Avery’s argument.

As discussed earlier, in order to obtain a possession conviction under

§ 924(c)(1), the government must demonstrate that (1) the defendant committed a

crime of violence or a drug trafficking crime, (2) possessed a firearm, and (3)

possessed the firearm in furtherance of the underlying crime. 18 U.S.C.

§ 924(c)(1); Basham, 268 F.3d at 1206. As also explained above, trial evidence

- 39 -
clearly supported the jury’s conclusion that Mr. Avery committed a drug

trafficking crime from the home where the guns were found. The record also

unequivocally supports the conclusion that Mr. Avery owned the five firearms

that form the basis of Counts 4, 5, 6, 7, and 8, 18 a fact Mr. Avery concedes on

appeal. Consequently, the only question is whether the government presented

sufficient evidence to satisfy § 924(c)(1)’s “in furtherance of” element.

As outlined earlier, § 924(c)(1)’s “in furtherance of” language requires the

government to prove a nexus between a defendant’s possession of firearms and

the defendant’s drug trafficking activity. Basham, 268 F.3d at 1207. Generally

speaking, the government must demonstrate that the defendant’s firearm

possession “furthered, promoted or advanced his illegal drug activity.” Iiland,

254 F.3d at 1274.

Courts have repeatedly ruled that simply showing that the defendant was “a

drug dealer [who] possessed a gun” is insufficient to obtain a § 924(c)(1)

conviction. See Iiland, 254 F.3d at 1274. However, we specifically have held

that “a firearm that is kept available for use if needed during a drug transaction, is

‘possessed in furtherance of’ drug trafficking . . . so long as such possession ‘in

furtherance of’ is the intent of the drug trafficker.” Basham, 268 F.3d at 1208.

18
In his February 2000 confession, Mr. Avery identified each of the
weapons at issue in this case and admitted that owned the weapons. This aspect
of his confession was introduced at trial.

- 40 -
Moreover, we have explained that deciding whether a defendant intended to

possess a weapon in furtherance of a drug trafficking crime is “necessarily . . .

subject to proof by circumstantial evidence, and factors such as the type of drug

activity being conducted, the accessibility of the firearm, the type of firearm, the

legal status of the firearm, whether the firearm is loaded, the proximity of the

firearm to drugs or drug profits, and the time and circumstances under which the

firearm is found.” Id. (citing Ceballos-Torres, 218 F.3d at 414-15); see also

Wahl, 290 F.3d at 376 (identifying similar factors).

In this case, contrary to Mr. Avery’s suggestions, the evidence presented by

the government clearly showed that he was more than a drug dealer who just

happened to own several firearms. All five weapons were found in a home from

which Mr. Avery admitted that he had sold cocaine. Agents discovered one

firearm inside a closet near the home’s front door. The confidential informant

had entered through the same door when executing the controlled buy. The

remaining four weapons were discovered in Mr. Avery’s bedroom, the only room

in the home where agents found drugs. Inside the small, twelve-by-fourteen foot

bedroom was a dresser upon which sat cocaine and cocaine base. Next to this

cocaine rested several bullets. Within one of the dresser’s drawers was a .380

caliber pistol. Beside the dresser was a bed, and a loaded “model 22 Glock, 40

Caliber Smith and Wesson” lay between the mattress and box spring of this bed.

- 41 -
 Inside the closet of this small bedroom police found a slug-loaded

Mossberg 12-gauge shotgun, the stock of which had been replaced with “pistol

grips.” A loaded Colt AR 15 .223 caliber rifle, which had a “large capacity

magazine,” was also found in the closet, as was a safe containing significant

amounts of cash, including four of the five twenty-dollar bills that the

confidential informant had used to purchase cocaine from the home a few hours

earlier.

As if this circumstantial evidence was not enough, Mr. Avery admitted that

at least one of the weapons had been obtained from a gang member intending to

“smoke” another individual. In addition, DEA agents testified that it was

common for drug dealers to keep guns near by for protection of their persons and

their drugs.

Taken as a whole, this evidence strongly suggests that Mr. Avery intended

to keep all five firearms “available for use if needed during a drug transaction.” 19

Basham, 268 F.3d at 1208. Compare Iiland, 254 F.3d at 1274 (reversing

Mr. Avery’s only substantive response to this overwhelming evidence is
19

to assert that he possessed the guns for a legitimate reason, explaining that he “is
an Army Veteran having served between 1987 and 1993, and had no felony
record. . . . Having guns in one’s home in Kansas is not uncommon. The guns
simply cannot be in furtherance of a drug trafficking offense.” There is some
question as to whether Mr. Avery even presented this argument to the jury, as Mr.
Avery only cites post-trial presentence reports to support his claims and has not
provided this court with the opening and closing arguments in this case. Even if
he did raise these arguments, however, they hardly negate the sufficiency of the
evidence presented by the government.

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possession in furtherance of conviction because the government produced “no

evidence that the gun and drugs were ever kept in the same place or that [the

defendant] ever kept the gun accessible when conducting drug transactions”),

with Wahl, 290 F.3d at 376-77 (upholding possession in furtherance of conviction

where loaded, illegally owned weapon was found in “close proximity” to drugs

and cash); Timmons, 283 F.3d at 1253 (affirming § 924(c)(1) conviction where

ammunition, two loaded weapons, and bullet proof vest were found in close

proximity to cocaine); Basham, 268 F.3d at 1208 (explaining that “possession of a

firearm in proximity to drugs or drug proceeds” may be considered when deciding

if a defendant possessed the weapons in furtherance of a drug trafficking crime);

Mackey, 265 F.3d at 462-63 (upholding in furtherance of conviction where “there

was an illegally possessed, loaded, short-barreled shotgun in the living room of

the crack house, easily accessible to the defendant and located near the scales and

razor blades” and the defendant “possessed cocaine and a large sum of cash”);

and Finley, 245 F.3d at 203 (finding evidence sufficient to support in furtherance

of conviction because jury could have concluded that defendant “kept [the

weapon] for protection in proximity to the window from which he sold . . .

drugs”).

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 VI. Motion in Limine

Mr. Avery next contends that his conviction on Count 1 should be reversed

because the government violated an in limine order preventing the prosecution

from introducing a statement he made in response to a question by Officer Shade

following the December 1997 stop. Allegedly, after being placed under arrest,

but before receiving Miranda warnings, Officer Shade asked Mr. Avery if there

were any narcotics in his car besides the two baggies of powder cocaine found on

Mr. Avery’s person. In response to the question, Mr. Avery stated that the glove

compartment of his car contained cocaine.

We find Mr. Avery’s argument frivolous. First, other than his attorney’s

statements before the district court, there is no evidence in the record on appeal

that the challenged statement was obtained in violation of Miranda v. Arizona,

384 U.S. 436 (1966). Second, given the confusion in the record, it is not at all

apparent that the government violated the in limine order. Third, during trial, the

district court ruled that the government’s questions concerning the statement did

not violate its prior in limine ruling. We review this ruling for an abuse of

discretion, see United States v. Wagoner County Real Estate, 278 F.3d 1091, 1099

(10th Cir. 2002), and nothing in the record leads us to believe that the district

court abused its discretion. Finally, in portions of the record not cited by either

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Mr. Avery or the government, it is clear that Mr. Avery’s own attorney elicited

more damaging descriptions of the statement than did the government.

VII. Apprendi

Mr. Avery’s final argument on appeal is that the district court’s failure to

instruct the jury on the drug quantities for Count 1 violates his rights under

Apprendi. Because Mr. Avery raises his Apprendi claim for the first time on

appeal, we review the issue under the plain error standard. United States v.

Bailey, 286 F.3d 1219, 1222 (10th Cir. 2002); Cernobyl, 255 F.3d at 1218;

Heckard, 238 F.3d at 1235; Hishaw, 235 F.3d at 574. “Under this standard,

reversal is warranted only where there is: (1) an error; (2) that is plain or obvious;

(3) that affects substantial rights; and (4) that seriously affects the fairness,

integrity or public reputation of judicial proceedings.” United States v. James,

257 F.3d 1173, 1182 (10th Cir. 2001).

As previously discussed, the Supreme Court held in Apprendi that “[o]ther

than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” 530 U.S. at 490. As Mr. Avery correctly notes,

Count 1 of his indictment charged him with possessing thirteen grams of cocaine,

an amount that, under 21 U.S.C. § 841(b)(1)(B)(iii), would have been sufficient to

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raise the statutory maximum penalty he faced from twenty to forty years.

Compare id. with id. § 841(c). The district court, however, never instructed the

jury on the quantity issue. 20 In the wake of Apprendi, we ruled that “under

§ 841(b)(1), the quantity of drugs is a fact that may increase the penalty for a

crime beyond the prescribed statutory maximum and therefore must be submitted

to a jury, and proved beyond a reasonable doubt,” if the defendant’s sentence

exceeds the statutory maximum. Hishaw, 235 F.3d at 575 (internal quotation

marks omitted).

However, Mr. Avery’s sentence on Count 1, seventy-eight months, falls

below the maximum penalty (twenty years) allowed under § 841(a) where no

quantity amount is alleged or submitted to the jury. See 21 U.S.C. §

841(b)(1)(C). In this situation, some of our decisions have suggested that the

failure to submit the drug quantity question to the jury cannot be considered

“error” under Apprendi. See, e.g., United States v. Combs, 267 F.3d 1167, 1182

(10th Cir. 2001); United States v. Eaton, 260 F.3d 1232, 1239 (10th Cir. 2001);

United States v. Wilson, 244 F.3d 1208, 1215 (10th Cir. 2001) cert. denied sub

nom, 121 S.Ct. 2619 (2001); United States v. Thompson, 237 F.3d 1258, 1262

(10th Cir. 2001). In slight contrast to these holdings, other Tenth Circuit opinions

20
Although Mr. Avery’s trial and sentencing occurred before the Supreme
Court’s Apprendi decision, “its holding is applicable to his pending appeal on
direct review.” United States v. Wilson, 244 F.3d 1208, 1214 (10th Cir. 2001),
cert. denied sub nom, 121 S.Ct. 2619 (2001).

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have concluded that the failure to submit the drug quantity issue to the jury is

error, but then reasoned that, because the defendant’s actual sentence did not

exceed the statutory maximum he could have received had the Apprendi error not

occurred (in this case, twenty years), the error did not affect the defendant’s

“substantial rights.” See Heckard, 238 F.3d at 1235; Hishaw, 235 F.3d at 577.

Therefore, even assuming that the district court committed error by not submitting

the quantity issue to the jury, Mr. Avery’s sentence on Count 1 would not be

reversible under the plain error standard because it did not violate his substantial

rights.

VIII. Conclusion

For the foregoing reasons, we AFFIRM Mr. Avery’s convictions and

sentences in all respects.

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