IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41131
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ANTHONY EVANS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-00-CR-3-1
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November 8, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Mark Anthony Evans appeals from his conviction and sentence
for: 1) possession with intent to distribute cocaine, 21 U.S.C.
§ 841; 2) possession of a firearm during and in relation to a
drug trafficking crime, 18 U.S.C. § 924(d)(1); and 3) being a
felon in possession of a firearm, 18 U.S.C. § 922(g). Evans
argues that the evidence is insufficient to support the jury’s
verdict on the count charging him with a violation of 18 U.S.C.
§ 922(g)(1), because that statute is unconstitutional when the
only interstate commerce nexus is the mere fact that the firearm
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-41131
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at some point traveled interstate. “This court has repeatedly
emphasized that the constitutionality of § 922(g)(1) is not open
to question.” See United States v. De Leon, 170 F.3d 494, 499
(5th Cir.), cert. denied, 528 U.S. 863 (1999). Recent decisions
by the Supreme Court do not alter this ruling.
Evans has not shown, and in fact fails to argue, that the
district court participated in any way in the plea discussions
between Evans and the Government, either before or after the
court’s rejection of his plea agreement. Without such a showing,
it was not error for the same district court to impose sentence.
See United States v. Adams, 634 F.2d 830, 835 (5th Cir. 1981).
As the Government concedes, Evans’ argument that the
paragraph of the indictment charging him with a violation of 18
U.S.C. § 924(c) is legally insufficient because it charged that
he “possessed” a firearm during and relation to a drug
trafficking crime, and thus failed to state a crime under the
statute, is convincing. Under separate clauses of 18 U.S.C.
§ 924(c)(1)(A), an individual who “uses or carries” a firearm
“during and in relation to” a drug-trafficking offense or one who
“possesses” a firearm “in furtherance of” such an offense
violates the law. This court has considered the meaning of the
“possession-in-furtherance” language added in 1998 and determined
that the phrase has a definition distinct from “using or
carrying” a firearm “during and in relation to” drug trafficking.
United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir. 2000),
cert. denied, 531 U.S. 1102 (2001). The court held that, under
the “possession-in-furtherance” clause it was necessary to
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present evidence “more specific to the particular defendant,
showing that his or her possession actually furthered the drug
trafficking offense.” Id. at 414.
In light of the Ceballos-Torres decision, the indictment
charging Evans with a violation of 18 U.S.C. § 924(c) was
defective because it charged Evans with a crime that does not
exist under the statute, possession of a firearm during and in
relation to a drug trafficking crime. See United States v.
Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996). Evans’ conviction
on this court is therefore VACATED. Because a conviction under
18 U.S.C. § 924(c) carries a mandatory 60-month sentence to run
consecutive to any other sentence, the case is REMANDED to the
district court for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.