United States v. Mario Bustos ( 2006 )


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  •                                                                        [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 04-15204                          APRIL 21, 2006
    ________________________                  THOMAS K. KAHN
    CLERK
    D. C. Docket No. 03-00373-CR-B-S
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    MARIO BUSTOS,
    a.k.a. Mario Busto,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    _________________________
    (April 21, 2006)
    Before BIRCH, CARNES and BRUNETTI *, Circuit Judges.
    BIRCH, Circuit Judge:
    *
    Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
    designation.
    Mario Bustos appeals his conviction for carrying a firearm during and in
    relation to a drug trafficking crime. We find that the evidence was sufficient to
    sustain his conviction and that the indictment was not constructively amended by
    the jury instruction. We, therefore, AFFIRM.
    I. BACKGROUND
    Bustos was indicted for possession with intent to distribute a controlled
    substance, in violation of 
    21 U.S.C. § 841
    (a)(1) and (b)(1)(C) (Count One), and
    carrying a firearm during and in relation to a drug trafficking crime, in violation of
    
    18 U.S.C. § 924
    (c)(1)(A) (Count Two). He pled not guilty and was tried before a
    jury.
    At trial, the testimony revealed that an undercover officer and a confidential
    informant (“CI”) met with Bustos in a hotel room in order to purchase drugs. The
    undercover officer testified that, before the transaction took place, Bustos offered
    him a bottled soft drink “that had a pop top.” R5 at 86. Bustos reached into the
    drawer of a nightstand, pulled out a handgun and unloaded it. 
    Id. at 86, 99
    . He
    then used the trigger guard of the gun to remove the bottle cap, placed the gun on
    the dresser, and handed the soft drink to the officer. Bustos then sold the officer
    and the CI marijuana.
    2
    A police officer testified that, in drug deals, firearms were used for
    protection or to “rip off” others. 
    Id. at 116-17
    . A translator with the police
    department testified that, after his arrest, Bustos gave a statement to police. In that
    statement, Bustos stated that someone named Juan or Jose offered to pay for his
    hotel room if he would keep some marijuana. Bustos told the police that, when he
    was given the marijuana, he was also given a gun for his protection. 
    Id. at 129
    .
    At the close of the government’s evidence, Bustos moved for a judgment of
    acquittal, which the district court denied. He then changed his plea to guilty as to
    Count One. Bustos took the stand in his own defense and testified that Juan, the
    man who offered to put him up in a hotel room in exchange for Bustos taking care
    of his marijuana, brought the gun to the hotel room. 
    Id. at 151
    . Bustos further
    testified that the gun was unloaded on the evening of the arrest. 
    Id. at 151-52
    .
    Bustos explained that he removed the unloaded gun from the nightstand and used it
    to open the soft drinks for the CI and the undercover officer. 
    Id. at 156-57
    . He
    stated that he never used the gun for anything other than opening soft drinks and
    that the gun never left the hotel room. On cross-examination, Bustos explained
    that Juan told him that the gun could be useful for defending himself, but Bustos
    told Juan that he did not need the gun.
    3
    Bustos renewed his motion for acquittal, which the district court denied.
    The district court then instructed the jury that the government had to prove the
    following elements beyond a reasonable doubt for Count Two:
    First:  That the defendant committed the drug trafficking crime
    charged in Count One of the Indictment;
    Second: That the defendant carried a firearm;
    Third: That the carrying of the firearm was during and in relation to
    the crime charged in Count One of the Indictment; and
    Fourth: That the defendant carried the firearm knowingly.
    R1-30 at 9. The court then stated that:
    The phrase “during and in relation to” the commission of an
    offense means that there must be a connection between the defendant,
    the firearm and the drug trafficking crime so that the firearm
    facilitated the crime or had the potential of facilitating the crime by
    serving some important function or purpose of the criminal activity
    such as enforcement or protection.
    To carry a firearm means either to have a firearm on or around
    one’s person or to transport, convey or possess a firearm in such a
    way that it is available for immediate use if one so desires.
    . . . It is enough that a firearm was present at the drug
    trafficking scene, that the firearm could have been used to protect or
    facilitate the operation, and the presence of the firearm was in some
    way connected with the drug trafficking offense.
    Mere presence of a firearm at the scene is not enough to find
    that defendant carried the firearm during and in relation to a drug
    trafficking crime, because the firearm’s presence may be coincidental
    or entirely unrelated to the underlying crime. Some factors that may
    help in determining whether defendant carried the firearm during and
    in relation to a drug trafficking offense include, but are not limited to:
    a. the type of drug activity that is being conducted;
    b. the accessibility of the firearm;
    c. the type of weapon;
    d. proximity to drugs or drug profits; and
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    e. the time and circumstances under which the gun is
    found.
    ....
    A person who has direct physical control of something on or
    around his person is then in actual possession of it.
    
    Id. at 10-12
     (emphasis in orginal).
    During deliberations, the jury submitted several questions to the district
    court judge. In one of the questions, the jurors requested “clarification of the . . .
    (term) mere presence of a firearm.” R1-24; R6 at 229-30. The district court
    answered the question by re-reading a portion of the jury instructions and provided
    examples of situations were “a firearm’s presence might be coincidental or entirely
    unrelated to the underlying offense” such as “where a drug trafficking crime takes
    place in a home with a display case of hunting rifles . . . or in a gun shop.” 
    Id. at 230-31
    . The jury then asked “Does how he used the firearm determine how we
    should make our judg[]ment or do we base it on possession alon[e]?” R1-25. The
    court initially responded that “it’s the purpose or the reason why the firearm was in
    there. It’s not actually how he used it.” R6 at 234-35. The district court explained
    that a defendant could be found guilty of carrying a firearm during a drug
    trafficking offense “even if the gun [was] never seen” or was never taken out of a
    car, if the defendant had carried the gun in the car with him and if the jury believed
    5
    that the gun was there to protect the drugs or money. 
    Id. at 235
    . The district court
    then expanded the answer as follows:
    The firearm must have some purpose or effect with respect to
    the drug trafficking crime. It’s presence or involvement cannot be the
    result of accident or coincidence. The gun at least must facilitate or
    have the potential of facilitating the drug trafficking offense.
    You should focus on the purpose of the gun being in the room.
    For example, an armed bank robber who carries his gun during the
    commission of the bank robbery and uses his gun to open a soda drink
    while the bank teller is gathering the loot has used the gun in a non-
    robbery fashion at some point in time during the robbery. The
    temporary, non-robbery use of the gun under the law does not mean
    that the robber did not carry the gun in a crime of violence.
    There are four elements to Count Two, and I am going to read
    them to you now. . . .
    ....
    Of course, element one is established. If you find beyond a
    reasonable doubt that elements two and four have been established,
    two being that the defendant carried the firearm and four that he
    carried the firearm knowingly, and if you find beyond a reasonable
    doubt that the gun was there to provide protection for the [drugs], that
    is to avoid the drugs being ripped off or to provide protection for the
    money from drug deals, then you may find that the firearm was
    carried during and in relation to the crime charged in Count One, even
    though the only use of the gun, according to the testimony, was for the
    defendant to open a soda can.
    
    Id. at 244-46
    . Neither the government nor Bustos objected to this response.
    The jury found Bustos guilty of Count Two. Bustos filed a motion for new
    trial or, in the alternative, for a judgment of acquittal based on the district court’s
    instruction to the jury as to “possession” of a firearm and insufficient evidence that
    he knowingly carried the gun. The district court denied the motion, finding that
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    the instructions taken as a whole accurately reflected the law and conformed to our
    proposed jury instructions. The court further found that Bustos’s handling of the
    gun supported the jury’s verdict that he carried the firearm. The district court then
    sentenced Bustos to serve consecutive prison terms of 15 months on Count One
    and 60 months on Count Two.
    Bustos raises two arguments on appeal. First, he contends that the evidence
    was insufficient to support a guilty verdict for carrying a firearm during and in
    relation to a drug trafficking offense. Second, he argues that the district court erred
    by constructively amending the indictment when it instructed the jury that finding
    that Bustos in possession of the firearm was sufficient to find him guilty of
    carrying the firearm.
    II. DISCUSSION
    A. Sufficiency of the Evidence
    Bustos argues that the evidence that he merely opened the soft drink bottle
    was insufficient to show that he “carried” a firearm during the commission of a
    drug trafficking offense because there was no evidence that he transported or
    moved the weapon onto the premises, carried it on his person, or used it in relation
    to the drug offense.
    7
    We review sufficiency of the evidence de novo but “view the evidence in the
    light most favorable to the government, with all reasonable inferences and
    credibility choices made in the government’s favor.” United States v. Martinez, 
    83 F.3d 371
    , 373-74 (11th Cir. 1996) (internal citation omitted). We review the denial
    of a motion for new trial for abuse of discretion. United States v. Anderson, 
    326 F.3d 1319
    , 1326 (11th Cir. 2003).
    “[A]ny 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 minimum of
    term of imprisonment for five years. 
    18 U.S.C. § 924
    (c)(1)(A)(i). Because the
    word “carry” inherently involves “some degree of physical transportation or
    movement,” “we consistently have held that the government must show some
    actual transporting of the firearm during and in relation to the offense” for a
    “carrying” conviction under § 924(c). United States v. Mount, 
    161 F.3d 675
    , 679
    (11th Cir. 1998). “[T]he discovery of an unloaded firearm near drugs in a home
    where drugs were sold is, standing alone,” insufficient to support a § 924(c)
    conviction for carrying a firearm. Id. at 680. We observed that our sister circuits
    have “sustained ‘carry’ convictions only where there was some evidence
    suggesting that the defendant had actually moved the firearm in relation to his drug
    offenses.” Id. The carrying element of § 924(c) is “clearly indicated” where the
    8
    defendant “carried a shoe-box that contained both the gun and the drugs in his
    hands.” United States v. Timmons, 
    283 F.3d 1246
    , 1250 (11th Cir. 2002).
    In this case, Bustos actually moved the weapon during a drug transaction.
    See Mount, 
    161 F.3d at 679
    . Because Bustos pulled a gun out of a drawer and
    handled it during the drug transaction and because there was testimony that the gun
    was there to provide protection during the transaction, the evidence was sufficient
    to support the jury’s verdict finding that Bustos had “carried” the firearm during
    and in relation to the drug transaction.
    B. Constructive Amendment
    We review “whether the district court misstated the law when instructing the
    jury or misled the jury to the prejudice of the defendant” de novo. Anderson, 
    326 F.3d at 1326
    . District courts are generally “granted broad discretion to formulate
    jury instructions as long as the jury charge as a whole correctly applies the law and
    states the facts.” Anderson, 
    326 F.3d at 1330
     (citation omitted). We “will not
    reverse a conviction on the basis of a jury charge unless the issues of law were
    presented inaccurately, or the charge improperly guided the jury in a substantial
    way as to violate due process.” 
    Id. at 1331
     (citation and internal punctuation
    omitted).
    9
    An indictment is constructively amended when the trial evidence and jury
    instructions “so modify the elements of the offense charged that the defendant may
    have been convicted on a ground not alleged by the . . . indictment.” United States
    v. Davis, 
    679 F.2d 845
    , 851 (11th Cir. 1982) (citation and internal punctuation
    omitted). A constructive amendment requires reversal. 
    Id.
     “A variance results
    when the terms of the indictment are unaltered but the evidence offered at trial
    proves facts materially different from those alleged in the indictment. A variance
    mandates reversal only when it substantially prejudiced a defendant’s rights.” 
    Id.
    (internal citations omitted). A finding that the district court erred in instructing the
    jury, however, is not enough to warrant a reversal; a defendant is entitled to a new
    trial only if we find that “a reasonable likelihood exists that the jury applied the
    [erroneous] instruction in an improper manner.” United States v. Leonard, 
    138 F.3d 906
    , 910 (11th Cir. 1998).
    The indictment charged Bustos with “carrying” a firearm rather than
    possession of a firearm under § 924(c)(1)(A). The district court’s original
    instructions stated that “[t]o carry a firearm means either to have a firearm on one’s
    person or to transport, convey or possess a firearm in such a way that it is available
    for immediate use,” and then provided a definition of possession. See R1-30 at 10
    (emphasis in original). The evidence was sufficient to show that Bustos “carried”
    10
    the firearm by handling it during the drug transaction. Consequently, neither a
    constructive amendment nor variance occurred because the trial evidence did not
    “modify the elements of the offense charged that the defendant may have been
    convicted on a ground not alleged by the indictment” or prove “facts materially
    different from those alleged in the indictment.” See Davis, 
    679 F.2d at 851
    .
    Further, the district court’s jury instructions as a whole correctly applied the
    law and stated the facts–even though the term “possess” was included in the
    definition of “carry”–and the district court used the term “carry” rather than
    “possess” and reiterated the elements of the crime, including that the defendant
    carried the firearm, in its answer to the jury’s question. Further, the district court
    stated that mere presence of the firearm at the scene was not enough, and the
    “armed bank robber” illustration correctly stated the law by explaining that the gun
    must have been knowingly carried during and in relation to the crime charged.
    The district court, therefore, did not abuse its discretion in denying Bustos’s
    motion for new trial based on constructive amendment of the indictment.
    III. CONCLUSION
    The evidence was sufficient to support the jury’s verdict on Count Two
    because Bustos pulled a pistol out of a drawer and handled it during the drug
    transaction. The district court did not constructively amend the indictment by
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    including the term “possession” in its instructions to the jury because the
    instructions as a whole correctly applied the law and stated the facts. We,
    therefore, affirm.
    AFFIRMED.
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