United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
February 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
04-60701
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERRIAN LAMOND MCGILBERRY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
Before SMITH, BENAVIDES, and PRADO, Circuit Judges.
BENAVIDES, Circuit Judge:
A jury convicted Gerrian McGilberry of possession of a firearm
by a convicted felon (Count 1) and possession of a firearm during
and in relation to a drug trafficking offense (Count 2). The court
sentenced McGilberry to forty-one months imprisonment on Count 1
and a consecutive term of sixty months on Count 2.
On appeal, McGilberry argues for the first time that his
indictment was defective, there was a constructive amendment of his
indictment, and the trial judge erred by treating the Sentencing
Guidelines as mandatory. We AFFIRM McGilberry’s conviction and
sentence.
I. FACTS AND PROCEDURAL BACKGROUND
The evidence presented at trial showed that, on the night in
question, police officers arrested J.L. Payne for domestic assault
at a hotel where he was temporarily staying. Payne informed the
officers that somebody was supposed to deliver crack cocaine to his
room later that evening. Payne agreed with the officers to
participate in a sting operation to catch the dealer.
McGilberry arrived at Payne’s hotel room shortly thereafter
accompanied by Elton Cooley. Payne then called the officers and,
using a code phrase, indicated that McGilberry had drugs with him.
When the officers entered the room, McGilberry was sitting alone at
a table with a handgun on it. Payne testified that McGilberry had
earlier taken the gun from his jacket and set it on the table. The
officers also found crack cocaine in a jacket that was hanging on
McGilberry’s chair.
McGilberry was indicted on a single charge of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2). After pleading not guilty, a superseding indictment was
issued with the additional charge of “knowingly possess[ing] a
firearm . . . during and in relation to a drug trafficking crime.”
See 18 U.S.C. 924(c)(1). This second charge was added
approximately one week before trial commenced, but McGilberry
2
expressly waived any right to additional preparation time.
The instructions allowed the jury to convict on this second
charge only if it found that McGilberry “knowingly carried a
firearm during and in relation to [his] alleged commission of the
crime of possession of cocaine base with intent to distribute.”
The jury convicted McGilberry on both counts.
At sentencing, the district court calculated McGilberry’s
Guideline range as forty-one to fifty-one months for Count 1 and
sentenced him to forty-one months, “the minimum that I can give him
as to Count 1.” McGilberry was then sentenced to a consecutive
sixty-month sentence on Count 2, the minimum required by statute.
18 U.S.C. § 924(c)(1)(A).
II. DISCUSSION
A. Defective Indictment
McGilberry argues for the first time on appeal that the
superseding indictment failed to charge him with a crime when it
charged him with “possess[ing] a firearm . . . during and in
relation to a drug trafficking crime.” Because he did not raise
this issue below, we review for plain error. FED. R. CRIM. PRO.
52(b). This standard requires a showing that there was “(1) error,
(2) that is plain, and (3) that affects substantial rights.”
United States v. Olano, 507 U.S. 725, 732–35 (1993). Even after
such a showing, we only correct the error where it “seriously
affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 736 (quoting United States v. Atkinson, 297
3
U.S. 157, 160 (1936)).
1. The Indictment was Plainly Erroneous
The sufficiency of an indictment is measured by whether (1)
each count contains all essential elements of the offense charged,
(2) the elements are charged with particularity, and (3) the charge
is specific enough to preclude a subsequent prosecution on the same
offense. United States v. Threadgill, 172 F.3d 357, 366 (5th Cir.
1999).
McGilberry argues, the government concedes, and we find that
the language used in the indictment was plainly erroneous. Section
924 refers to someone who either “uses or carries a firearm . . .
during and in relation to any . . . drug trafficking crime,” or
someone “who, in furtherance of any such crime, possesses a
firearm.” 18 U.S.C. § 924(c)(1)(A). When the conduct charged is
possession of a firearm, the appropriate standard of participation
is “in furtherance of” a crime. However, if the defendant uses or
carries a firearm, the participation standard is “during and in
relation to” a crime. Here, the indictment erroneously combined
the “possession” prong of the statute with the “during and in
relation to” prong, thereby failing to list the essential elements
of any criminal conduct.1 See generally United States v. Ceballos-
1
While § 924(c)(1)(A) certainly targets two different types
of conduct, we do not address whether it contains two distinct
offenses or merely two methods to commit the same general offense.
This question has been addressed by some of our sister circuits.
See, e.g., United States v. Arreola, 467 F.3d 1153, 1158 (9th Cir.
4
Torres, 218 F.3d 409, 412–15 (5th Cir. 2000).
This error is not necessarily harmless, as this court has
recognized that “[t]here are situations where a possession would be
‘during and in relation to’ drug trafficking without ‘furthering or
advancing’ that activity.” Id. at 413. A brief history of § 924
helps to appreciate the differences between the two types of
conduct that are criminalized therein.
An earlier version of § 924 criminalized only “us[ing] or
carry[ing] a firearm during and in relation to” drug trafficking,
without any reference to simple possession. Id. at 412. The
Supreme Court grappled with the meaning of this provision as it
pertained to two defendants, one who had a firearm in the trunk of
a car while drugs were in the passenger compartment, and another
who kept a gun locked away in his closet near some illegal drugs.
Bailey v. United States, 516 U.S. 137 (1995). The Court found the
evidence insufficient to convict either defendant under the “uses
or carries” provision because the firearms were not “actively
employed.” Id. at 150–51.
The Court held that use of a firearm requires more than mere
possession of an accessible firearm. Id. at 141, 143–44.
“[N]early every possession of a firearm by a person engaged in drug
2006) (holding that while § 924 “names two distinct acts, it does
not create two separate offenses”). It is unnecessary to resolve
this issue here, and would be imprudent to do so because the
parties did not directly address it.
5
trafficking would satisfy that standard, ‘thereby eras[ing] the
line that the statutes, and the courts, have tried to draw.’” Id.
at 144 (quoting United States v. McFadden, 13 F.3d 463, 469 (1st
Cir. 1994) (Breyer, C.J., dissenting)).
After the Supreme Court’s opinion in Bailey, Congress
broadened § 924 and added the “possession in furtherance of”
language. See Ceballos-Torres, 218 F.3d at 413. In interpreting
this new language, this circuit has held that mere possession is
only criminalized where it “furthers, advances, or helps forward a
drug trafficking offense.” Id. at 414. The result is that the use
or carrying of a firearm is illegal when it is “actively employed”
during a drug crime, and mere possession is criminal only when it
furthers or advances the drug trafficking offense.2
With that background in mind, it is apparent that the
indictment in this case, referencing only “possess[ion] . . .
during and in relation to” a drug trafficking crime failed to list
2
The distinction is admittedly vague. It appears that the
“possession in furtherance of” language completely swallows the
“uses or carries during and in relation to” language. While this
reading would render some of the statutory language superfluous,
“surplusage in this statute is understandable given the history
behind the amended version of § 924.” Ceballos-Torres, 218 F.3d at
415.
It is difficult and maybe impossible to concoct a situation
where a firearm is actively employed during a drug crime but not
possessed in furtherance of that crime. A situation where a
defendant entrusts a firearm to a third party for use during a
joint criminal enterprise could arguably constitute use and active
employment without possession, but we are unaware of any case
holding as much.
6
all the elements of any offensive conduct. It combines the lower
conduct standard with the lower standard of participation embodied
in § 924, and would allow for a conviction where the firearm is not
actively employed and does not advance or further the drug crime.
In light of Bailey and Ceballos-Torres, that error is plain.
2. The Error Did not Affect the Fairness, Integrity, or
Public Reputation of the Proceedings
Having found that there was plain error below, the next step
in the analysis is typically to consider whether the error affected
McGilberry’s substantial rights. Olano, 507 U.S. at 734. While
this inquiry normally requires a finding that the error was
prejudicial, it is unclear what type of showing must be made to
prove that a defective indictment affected substantial rights. See
United States v. Cotton, 535 U.S. 625, 632–33 (2002); Olano, 507
U.S. at 735 (“We need not decide whether the phrase ‘affecting
substantial rights’ is always synonymous with ‘prejudicial.’”).
The Supreme Court has repeatedly avoided answering that question,
and instead chosen to skip this step in the plain error analysis
when defective indictments are at issue. See, e.g., Cotton, 535
U.S. at 632–33; Johnson v. United States, 520 U.S. 461, 468–70
(1997).
We follow the Supreme Court’s lead in turning directly to the
fourth step of the plain error analysis. Even if the defective
indictment in this case affected McGilberry’s substantial rights,
there are two reasons why it cannot be said that it affected the
7
fairness, integrity or public reputation of his judicial
proceedings.
The first is that the evidence that McGilberry used or carried
the firearm in question was “essentially uncontroverted.” See
Cotton, 535 U.S. at 633; Johnson, 520 U.S. at 470. On the evidence
presented, it would have been impossible for a jury to find that
McGilberry possessed the firearm but did not use or carry it.
According to Payne’s unrefuted testimony, McGilberry removed the
gun from his jacket and set it on the table after he arrived in
Payne’s motel room. In addition to Payne, two officers and
McGilberry’s only witness all testified that the gun was sitting
directly in front of Payne during the incident.
While this may not be overwhelming evidence in the abstract,
the jury’s verdict necessarily included a finding that McGilberry
used or carried the firearm in question. The jury found that
McGilberry possessed the gun that, according to every witness, sat
on the table directly in front of him. The Supreme Court has
explicitly stated that § 924 “certainly includes brandishing [and]
displaying” a firearm as methods of using it. Bailey, 516 U.S. at
148; see also Muscarello v. United States, 524 U.S. 125, 136
(1998).
The only theory presented as to how the gun ended up on the
table is that McGilberry carried and placed it there. In
convicting McGilberry, the jury must have credited the
8
uncontroverted testimony that McGilberry (1) possessed the gun in
question, (2) carried the gun to the motel room, and (3) displayed
it openly.3 No other theory of possession was ever offered.
Because the jury necessarily found each element contained in § 924,
the erroneous indictment did not affect the fairness or integrity
of the underlying proceedings.4
The second reason the error did not affect the proceedings’
fairness is that the jury was properly instructed on the elements
of § 924. While the indictment erroneously charged McGilberry with
simple possession, the jury was instructed to convict McGilberry
only if it found that he “knowingly carried a firearm during and in
relation to [his] alleged commission of the crime of possession of
cocaine base with intent to distribute.” (emphasis added). The
instructions continued that the firearm “must have some purpose,
role, or effect with respect to the drug trafficking crime.” While
the indictment was plainly erroneous, the jury instructions largely
mitigated that error by properly conveying the elements of § 924.
B. Constructive Amendment
McGilberry next complains that the jury instructions amounted
3
McGilberry never alleges that the prosecution changed or
concealed its version of the events that led to this charge, so
there is no complaint that the indictment provided him with
inadequate notice.
4
There are cases where a jury could conclude that a defendant
possessed but did not use or carry a firearm during and in relation
to a crime—if a defendant stashes a gun in a nearby dresser drawer
for use if something goes awry, for instance—but this is not such
a case.
9
to a constructive amendment of the indictment. A constructive
amendment occurs when the jury is allowed “to convict the defendant
upon a factual basis that effectively modifies an essential element
of the offense charged.” United States v. Holley, 23 F.3d 902, 912
(5th Cir. 1994); United States v. Salinas, 654 F.2d 319, 324 (5th
Cir. 1981). Such modifications endanger a defendant’s Fifth
Amendment right to be “tried only on the charges presented in a
grand jury indictment.” United States v. Chandler, 858 F.2d 254,
256 (5th Cir. 1988).
McGilberry raises this argument for the first time on appeal,
and we review for plain error. United States v. Daniels, 252 F.3d
411, 414 n.8 (5th Cir. 2001) (explaining that constructive
amendments once required automatic reversal in this circuit, but
have since been held susceptible to plain error review). As we did
in Daniels, id., we assume without deciding that the first three
requirements of plain error are met and turn directly to the fourth
prong and ask whether any error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at
414 (quoting Olano, 507 U.S. at 736).
Here, the indictment charged McGilberry with possession of a
firearm during and in relation to the drug trafficking crime,
whereas the jury instructions required a finding that he “knowingly
carried a firearm during and in relation to the defendant’s alleged
commission of the crime.” (emphasis added). The instructions
10
required a more demanding showing than the indictment, because
carrying a firearm “involves some dominion or control, [and]
connotes more than mere possession.” United States v. Ramon-
Rodriguez, 136 F.3d 465, 468 (1998).
In other words, the instructions only narrowed the grounds for
conviction and did not expand the bases on which McGilberry could
be convicted. “[A]n instruction which does not broaden the
possible bases of conviction beyond what is embraced by the
indictment does not constitute a constructive amendment,” at least
not a reversible one.5 United States v. Gonzales, 436 F.3d 560,
577 (5th Cir. 2006) (emphasis in original) (citing United States v.
Miller, 471 U.S. 130 (1985)).
In addition to narrowing the offense charged, the instructions
correctly stated a grounds for conviction under § 924. In such
circumstances, we regularly find that the error did not affect the
fairness of the proceedings sufficient to reverse on plain error
review. See Daniels, 252 F.3d at 414; United States v. Reyes, 102
F.3d 1361, 1365 (5th Cir. 1996). Because the constructive
amendment narrowed the grounds for conviction and correctly listed
5
This is not to say that the government can unabashedly
charge § 924 offenses broadly and then narrow the charges through
jury instructions depending on what the trial evidence shows. In
such instances, a constructive amendment complaint might be
successful if there were reason to believe the defendant lacked
notice as to the underlying conduct he was being charged with.
There is no such allegation here, so we cannot say that the
fairness or integrity of the proceedings were seriously jeopardized
by narrowing the grounds for conviction.
11
a statutory ground for conviction under § 924, any error did not
render the proceedings unfair.
C. Booker Error
McGilberry’s final argument is that the district court erred
when sentencing him under a mandatory Guidelines scheme. See
United States v. Booker, 543 U.S. 220 (2005). “Because he did not
raise this argument in the district court, we review this argument
for plain error.” United States v. Valenzuela-Quevedo, 407 F.3d
728, 732 (5th Cir. 2005); United States v. Mares, 402 F.3d 511,
520–21 (5th Cir. 2005).
To succeed on plain error review, McGilberry must show that
“the result would have likely been different had the judge been
sentencing under the Booker advisory regime rather than the pre-
Booker mandatory regime.” Mares, 402 F.3d at 522. This requires
McGilberry to “point to statements in the record by the sentencing
judge demonstrating a likelihood that the judge sentencing under an
advisory scheme rather than a mandatory one would have reached a
significantly different result.” United States v. Pennell, 409
F.3d 240, 245 (5th Cir. 2005). McGilberry has not satisfied this
burden.
McGilberry relies primarily on (1) the district court’s
statement that the Guidelines “are severe for the crimes for which
Mr. McGilberry has been convicted,” and (2) the fact that
McGilberry received the minimum sentence permitted by the
12
Guidelines. Taken in isolation, these facts might suggest that
McGilberry would have received a lesser sentence under the proper
advisory scheme, but they are insufficient to show a likelihood
that a lesser sentence would have been imposed. See United States
v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005) (judge’s
indication that Guideline sentence was harsh and imposition of
minimum sentence were insufficient to show defendant’s substantial
rights were violated).
Moreover, the judge’s comments throughout sentencing make
clear that he was disinclined to be overly lenient. He commented
on McGilberry’s criminal history and that “time after time he’s
received probation, suspended sentences, and . . . [t]hat has a
tendency to cause the defendants at a federal level to think that
they can violate all kinds of criminal laws.” He continued that,
“when a person is on a course of criminal conduct and self-
destruction, that if he had some time in jail, it might cause him
to resurrect himself and cause his family to help him do so.”
In light of these comments, and absent any affirmative
indication that the judge would have given McGilberry a lesser
sentence under an advisory scheme, McGilberry has failed to show
that his sentence was the result of plain error.
III. CONCLUSION
For the foregoing reasons, we AFFIRM McGilberry’s conviction
and sentence.
13