United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 22, 2008 Decided May 16, 2008
No. 05-3038
UNITED STATES OF AMERICA,
APPELLEE
v.
J. D. WHEELER, III,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00111-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Neil H. Jaffee, Assistant
Federal Public Defender, entered an appearance.
Michael T. Ambrosino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese III , Assistant U.S.
Attorney.
Before: RANDOLPH, TATEL and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
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RANDOLPH, Circuit Judge: A jury convicted J.D. Wheeler,
III of using, carrying, and possessing a firearm in violation of 18
U.S.C. § 924(c)(1). Wheeler has two grounds of appeal: the
government’s evidence was insufficient to support his
conviction and the judge erroneously instructed the jury.
Viewed most favorably to the government, United States v.
Wahl, 290 F.3d 370, 375 (D.C. Cir. 2002), the evidence showed
as follows. Two officers of the Metropolitan Police Department
pulled Wheeler over for making an illegal left turn. Before the
officers approached the car, Wheeler handed a plastic bag to his
passenger, Lanika Lewis, who stuffed it between the front seats.
Officer Tyler went to the driver’s side of the car while Officer
Flemmings went to the passenger side. Officer Tyler told
Wheeler why she stopped him and asked for his license and
registration. Wheeler handed over his license, but he could not
immediately produce his registration. After some delay, Lewis
produced the registration from the glove compartment. There
was conflicting testimony about whether Wheeler had to first
unlock the glove compartment, but either way, it is undisputed
that once it was open, Officer Flemmings saw a gun inside the
glove compartment. After securing Wheeler and Lewis the
officers searched the car and found 83 bags of a white, rock-like
substance between the front seats. The substance tested positive
for cocaine base. The gun in the glove compartment was a
loaded, operable 9-millimeter semiautomatic. Wheeler was not
the registered owner of the gun, nor was he licensed to carry a
gun.
At trial, an expert witness testified that the appearance and
packaging of the cocaine base indicated that it was crack
cocaine, that its street value was $1,660, and that it was
packaged for street-level distribution. He also testified that a
handgun is the “number one” weapon of narcotics dealers for
protecting themselves and their wares. A jury convicted
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Wheeler of possession with intent to distribute cocaine base;
possession of a firearm and ammunition by a felon; and using,
carrying, and possessing a firearm in violation of 18 U.S.C.
§ 924(c)(1).
Wheeler claims the evidence was insufficient to support his
conviction for violating § 924(c)(1). This section sets minimum
sentences for “any person who, during and in relation to any . . .
drug trafficking crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm.” The
Supreme Court has held that “the phrase ‘carries a firearm’ . . . .
applies to a person who knowingly possesses and conveys
firearms in a vehicle, including in the locked glove
compartment.” Muscarello v. United States, 524 U.S. 125, 126-
27 (1998). The evidence supported a finding that Wheeler
knowingly possessed and conveyed a firearm in the glove
compartment. Expert testimony about why narcotics dealers
carry handguns, together with the accessibility of the gun and its
proximity to the large quantity of drugs, permitted the jury to
find that Wheeler carried the gun “during and in relation to” his
drug trafficking crime.
There was also sufficient evidence for a reasonable juror to
find that Wheeler possessed a firearm in furtherance of a drug
trafficking crime. That Wheeler possessed the gun is hardly
open to dispute. Whether he possessed it in furtherance of his
drug offense depended, as the district judge recognized before
trial, on considerations such as “the type of drug activity
conducted; accessibility of the firearm; type of firearm; whether
the firearm is stolen; whether the possession of the firearm is
legal or illegal; whether the firearm is loaded; the proximity of
the firearm to the drugs or drug profits; and the time and
circumstances under which the firearm is found.” Wahl, 290
F.3d at 376. Wheeler illegally possessed a handgun while
committing a drug offense, the evidence indicated he intended
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to distribute the drugs, and the loaded gun was close to the
drugs. This was more than enough to enable a rational trier of
fact to find that the government carried its burden of proving the
“in furtherance of” element.
As to Wheeler’s claim about an error in the jury
instructions, our review is for plain error because he interposed
no objection to the instructions. At the beginning of the trial, the
judge instructed the jury that “when guns are present in order to
protect contraband, they may be deemed to be used in relation
to the underlying felony.” The judge’s final instructions on this
point were nearly identical. The instructions were erroneous.
The Supreme Court held in Bailey v. United States that “[t]o
sustain a conviction under the ‘use’ prong of § 924(c)(1), the
Government must show that the defendant actively employed
the firearm during and in relation to the predicate crime.” 516
U.S. 137, 150 (1995). By allowing the mere presence of a
firearm to constitute use, the instructions ignored the
requirement that the defendant actively employ the firearm.
Even so, the errors do not warrant setting aside Wheeler’s
conviction because they did not affect Wheeler’s substantial
rights. See Johnson v. United States, 520 U.S. 461, 467 (1997).
“[W]e have repeatedly found harmless error in section 924(c)(1)
cases where, although the district court erroneously instructed as
to ‘using,’ it properly instructed as to ‘carrying,’ and the
circumstances indicated that the jury necessarily found that
carrying had occurred.” United States v. Johnson, 216 F.3d
1162, 1167 (D.C. Cir. 2000); see United States v. Green, 254
F.3d 167, 170-71 (D.C. Cir. 2001). Here, the jury necessarily
concluded that Wheeler carried the gun. It found that he was a
felon in possession of a firearm and ammunition. The only
firearm in question was in the glove compartment. And “the
phrase ‘carries a firearm’ . . . . applies to a person who
knowingly possesses and conveys firearms in a vehicle,
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including in the locked glove compartment.” Muscarello, 524
U.S. at 126-27; see United States v. Perkins, 161 F.3d 66, 70
(D.C. Cir. 1998). The erroneous instructions were therefore
harmless.
Affirmed.