[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 30, 2008
No. 08-12118 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00124-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JERALD ALLEN WILSON, JR.,
a.k.a. Buddy,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(December 30, 2008)
Before CARNES, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Jerald Wilson, Jr. pleaded guilty to two charges: (1) conspiracy to possess
with intent to distribute more than 500 grams of methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1) & 846, and (2) using or carrying a firearm in relation to a
drug trafficking offense, in violation of 18 U.S.C. § 924(c).1 Wilson contends that
the district court plainly erred in accepting his guilty plea on the § 924(c) charge
because there was no factual basis for the plea, as required by Federal Rule of
Criminal Procedure 11(b)(3). He further contends that the error affected his
substantial rights because he did not know that he was subject to consecutive
sentences for the drug and firearms charges and that he would not have pleaded
guilty to the firearms charge had he been aware of that.
I.
Rule 11(b)(3) of the Federal Rules of Criminal Procedure requires that the
court, before entering judgment on a guilty plea, “determine that there is a factual
basis for the plea.” Fed. R. Crim. P. 11(b)(3). That requirement protects “a
defendant who mistakenly believes that his conduct constitutes the criminal offense
to which he is pleading.” United States v. Frye, 402 F.3d 1123, 1128 (11th Cir.
2005) (internal quotation marks and citation omitted). “The standard for
evaluating challenges to the factual basis for a guilty plea is whether the trial court
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Wilson was originally charged under a ten-count indictment, which included conspiracy
to possess with intent to distribute over 100 kilograms of marijuana, possession with intent to
distribute over five kilograms of marijuana, and a forfeiture count. Eight of those charges were
dropped pursuant to the plea agreement.
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was presented with evidence from which it could reasonably find that the
defendant was guilty.” Id. (internal quotation marks and citation omitted).
Wilson did not raise a Rule 11 objection in the district court, and therefore
we review it for plain error only. See United States v. Monroe, 353 F.3d 1346,
1349 (11th Cir. 2003). “The four prongs of plain error review are: (1) there must
be error; (2) the error must be plain; (3) the error must affect the appellant’s
substantial rights; and (4) the error must seriously affect the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Novaton, 271 F.3d
968, 1014 (11th Cir. 2001) (internal quotation marks and alteration omitted). We
will not correct any error unless all four requirements are met. Id.
Under 18 U.S.C. § 924(c)(1)(A), “any person who, during and in relation to
any crime of violence or drug trafficking crime . . . . uses or carries a firearm . . . .
shall be sentenced to a term of imprisonment of not less than 5 years.” 18 U.S.C.
§ 924(c)(1)(A)(i). “The government need only show either that [a defendant] used
or carried the firearm during and in relation to the drug trafficking crime, not
both.” United States v. Timmons, 283 F.3d 1246, 1250 (11th Cir. 2002). A
defendant may be convicted under § 924(c) based on circumstantial evidence. See
United States v. Mount, 161 F.3d 675, 679 (11th Cir. 1998).
“To sustain a conviction under the ‘use’ prong of § 924(c)(1), the
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Government must show that the defendant actively employed the firearm during
and in relation to the predicate crime.” Bailey v. United States, 516 U.S. 137, 150,
116 S .Ct. 501, 509 (1995). Displaying a firearm constitutes use within the
meaning of § 924(c), as does “the silent but obvious and forceful presence of a gun
on a table.” Id. at 148, 116 S. Ct. at 508.
The phrase “during and in relation to” means 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.” Timmons, 283 F.3d
at 1251 (internal quotation marks and citation omitted). “Instead, the gun at least
must facilitate, or have the potential of facilitating, the drug trafficking offense.”
Id. (internal quotation marks and citation omitted). The purpose of the “during and
relation to” phrase is to preclude conviction where the presence of a firearm is
merely coincidental or is unrelated to the crime. See id.
Here the district court did not plainly err in accepting Wilson’s guilty plea.
The government proffered sufficient circumstantial evidence from which the
district court could reasonably conclude that Wilson used a firearm during and in
relation to a drug trafficking crime. That evidence included that the police found a
rifle in the workshop near Wilson’s house. The rifle was leaning against the wall
next to several pounds of marijuana and over $30,000 in cash. Further, the factual
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resume portion of Wilson’s plea agreement stated that his marijuana supplier
delivered the drugs to him hidden inside the tires of cars driven up from Mexico.
Wilson would remove the marijuana from the tires, weigh it, put different tires on
the car, and then the drug couriers would leave. Wilson also told police officers
that he spent most of his time in his workshop. From those facts, it was reasonable
for the district court to conclude that Wilson changed the marijuana-laden tires in
his workshop and that he kept the rifle with him for protection during the drug
deals. See Frye, 402 F.3d at 1128. The district court did not plainly err when it
accepted Wilson’s guilty plea to the § 934(c) charge. See Timmons, 283 F.3d at
1250–51.
AFFIRMED.
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