UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4793
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EDDIE V. CLAY,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:09-cr-00067-JRS-1)
Submitted: September 20, 2010 Decided: October 7, 2010
Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Robert J.
Wagner, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant. Neil H. MacBride, United States Attorney,
Jessica A. Brumberg, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eddie V. Clay appeals his conviction for possession of
a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp 2010). Clay
argues that the district court erred by failing to give his
proposed jury instruction that mere possession of a firearm was
insufficient to establish the “in furtherance of” element of the
offense. Clay also contends that the instruction actually given
by the court improperly shifted the burden of proof from the
Government to him. We affirm.
This court reviews a district court’s “decision . . .
to give a jury instruction and the content of an instruction
. . . for abuse of discretion.” United States v. Abbas, 74 F.3d
506, 513 (4th Cir. 1996). When jury instructions are challenged
on appeal, the issue “is whether, taken as a whole, the
instruction fairly states the controlling law.” United
States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990). Notably,
this court has held that a “district court is not required to
give defendant’s particular form of instruction, as long as the
instruction the court gives fairly covers a theory that the
defense offers.” United States v. Smith, 44 F.3d 1259, 1270-71
(4th Cir. 1995).
To establish a violation of 18 U.S.C.A. § 924(c), the
Government must prove “that the [defendant’s] possession of a
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firearm furthered, advanced, or helped forward a drug
trafficking crime.” United States v. Lomax, 293 F.3d 701, 705
(4th Cir. 2002). Factors that might lead a reasonable trier of
fact to conclude that the requisite nexus existed between the
firearm and the drug offense include: “‘the type of drug
activity that is being conducted, accessibility of the firearm,
the type of weapon, . . . whether the gun is loaded, proximity
to drugs or drug profits, and the time and circumstances under
which the gun is found.’” Id. (quoting United States v.
Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)). To that
end, a firearm might further or advance a drug trafficking crime
as a defense or deterrent against someone trying to steal drugs
or drug profits. Lomax, 293 F.3d at 705.
With these standards in mind, we have reviewed the
record and conclude that the district court properly instructed
the jury that if it believed Clay’s gun was accessible or
visible during Clay’s drug transactions, then it could infer he
possessed it for the purpose of providing defense and/or
deterrence. See United States v. Reid, 523 F.3d 310, 318
(4th Cir. 2008). The district court amply allowed for Clay’s
theory of coincidence and/or mistake by instructing the jury
that if it found the presence of the gun to be coincidental or
unrelated to the alleged drug trafficking crime, it must acquit
him. See United States v. Harris, 477 F.3d 241, 243-44 (5th
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Cir. 2007) (upholding nearly identical instruction). Thus, the
district court did not abuse its discretion in giving the
contested jury instruction.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because 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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