U.S. v. McGilberry, 04-60701.

• Decision Date: 21 February 2007
• Docket Number: No. 04-60701.,04-60701.
• Citation: 480 F.3d 326
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerrian Lamond McGILBERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

480 F.3d 326

UNITED STATES of America, Plaintiff-Appellee, v. Gerrian Lamond McGILBERRY, Defendant-Appellant.

No. 04-60701.

United States Court of Appeals, Fifth Circuit.

February 21, 2007.

Gaines H. Cleveland, Asst. U.S. Atty. (argued), Gulfport, MS, Jerry L. Rushing, Jackson, MS, for U.S.

John William Weber, III (argued), Gulfport, MS, Ellen Maier Allred, Hattiesburg, MS, for McGilberry.

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 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, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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, 113 S.Ct. 1770 (quoting United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 80 L.Ed. 555 (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-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, 116 S.Ct. 501, 133 L.Ed.2d 472 (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, 116 S.Ct. 501.

The Court held that use of a firearm requires more than mere possession of an accessible firearm. Id. at 141, 143-44, 116 S.Ct. 501. "[N]early every possession of a firearm by a person engaged in drug trafficking would satisfy that standard, `thereby eras[ing] the line that the statutes, and the courts, have tried to draw.'" Id. at 144, 116 S.Ct. 501 (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 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, 113 S.Ct. 1770. 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, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); Olano, 507 U.S. at 735, 113 S.Ct. 1770 ("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, 122 S.Ct. 1781; Johnson v. United States, 520 U.S. 461, 468-70, 117 S.Ct. 1544, 137 L.Ed.2d 718 (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 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, 122 S.Ct. 1781; Johnson, 520 U.S. at 470, 117 S.Ct. 1544. 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...