               United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 12-3165
                      ___________________________

                           United States of America

                     lllllllllllllllllllll Plaintiff - Appellee

                                        v.

                             Jonathan P. Simmons

                    lllllllllllllllllllll Defendant - Appellant
                                    ____________

                   Appeal from United States District Court
              for the Western District of Missouri - Kansas City
                               ____________

                        Submitted: November 8, 2013
                          Filed: December 6, 2013
                                 [Published]
                               ____________

Before LOKEN, BOWMAN, and COLLOTON, Circuit Judges.
                         ____________

PER CURIAM.
      Jonathan Simmons pleaded guilty to drug and firearm offenses, and the District
Court sentenced him to two consecutive sixty-month prison terms. Simmons appeals,
challenging the validity of his guilty plea.1 We affirm.

       In September 2010, Simmons was indicted by a grand jury on three counts:
Count One charged that Simmons knowingly possessed with intent to distribute one
hundred or more marijuana plants, a violation of 21 U.S.C. § 841(a)(1), (b)(1)(B);
Count Two charged that Simmons, “during and in relation to a drug-trafficking crime,
to wit: possession with the intent to distribute marijuana as alleged in Count One, did
knowingly and intentionally possess firearms,” a violation of 18 U.S.C.
§ 924(c)(1)(A)(i); and Count Three charged that Simmons possessed the firearms
after a prior felony conviction, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

      At a February 2012 change-of-plea hearing, the parties notified the District
Court that they had reached an oral agreement for Simmons to plead guilty to Count
One, modified to charge possession with intent to distribute less than one hundred
marijuana plants, and to Count Two. In exchange, the government agreed to dismiss
Count Three at sentencing. The parties further agreed to jointly recommend that the
sentence on these charges run concurrently with a sentence Simmons was serving on
an unrelated drug conviction.

       The government then described the offenses to which Simmons was pleading
guilty and the respective ranges of punishment. As relevant, the government recited
the Count Two charge as it was stated in the indictment, namely, that Simmons,


      1
       In his Second Supplemental Brief (the fifth counseled or pro se brief filed on
Simmons’s behalf), Simmons concedes that he received proper sentencing credit for
the time he spent in custody. Second Supp. Br. at 11. To the extent Simmons
attempts to raise a new argument regarding the calculation of his sentence, we refuse
to consider it. See, e.g., United States v. McLain, 709 F.3d 1198, 1200 n.1 (8th Cir.
2013) (noting that claims not raised in an opening brief are deemed waived).

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“during and in relation to” the drug-trafficking crime charged in Count One, “did
knowingly and intentionally possess firearms.” Tr. of Change of Plea Hr’g at 4. The
government also summarized the evidence it would have presented at trial. Law
enforcement officers executing a warrant on an unrelated drug charge arrested
Simmons at a Kansas City residence and observed numerous potted plants in the
basement while conducting a protective sweep of the residence. The officers
obtained a search warrant for the residence and thereafter recovered 119 marijuana
plants and three firearms. The government also stated that in a later interview,
Simmons admitted that he possessed the marijuana plants seized from the residence;
that he trafficked cocaine from Kansas City, Kansas, to Columbia, Missouri; that he
possessed or owned the three guns found in the residence; and that he had “bought
[the three guns] for home protection . . . regarding the cocaine transactions.” Id. at
15. When questioned by the court, Simmons confirmed that the government’s
summary “sound[ed] like what happened that day,” id. at 16, and repeatedly admitted
that he had knowingly and intentionally possessed the three guns, id. at 17–18.

       The court thereafter accepted Simmons’s guilty pleas to Count One, as
modified, and Count Two and ordered preparation of a presentence report (PSR). As
relevant, the PSR stated that Simmons had “admitted that the handguns recovered
from his residence were both owned and purchased by him” and that “he owned them
for home protection, since he was buying cocaine from dealers.” PSR ¶ 11. Simmons
did not object to this portion of the PSR. In addition, the PSR noted that by pleading
guilty to Count One, as modified to reflect fewer than 100 marijuana plants, Simmons
had avoided the statutory imprisonment range of 60–480 months applicable for 100
or more marijuana plants, 21 U.S.C. § 841(b)(1)(B)(vii); the advisory U.S. Sentencing
Guidelines range of 188–235 months for the greater drug amount, see PSR ¶ 66
(describing Guidelines sentencing range of 188–235 months for Total Offense Level
of 31 and Criminal History Category of VI); and a maximum possible sentence of 120
months on the dismissed Count Three, 18 U.S.C. § 924(a)(2).



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       At the September 2012 sentencing hearing, the District Court noted, and
Simmons agreed, that on “Count Two, [Simmons] pled guilty to being in possession
of firearms during a drug-trafficking crime.” Tr. of Sent. Hr’g at 2–3. The court then
turned to a pro se motion that Simmons had filed seeking to withdraw his guilty plea
because, in pertinent part, defense counsel had “failed to recognize the crucial error
in [the] indictment, this being the improper wording of Count Two.” Id. at 5.
Simmons explained that his plea was not valid because he had misunderstood Count
Two and that at the time of his plea, he was unaware of the error in the indictment.
Id. at 9–11. During a lengthy discussion of Simmons’s motion, the government
informed the court that it had considered “fil[ing] a motion . . . agreeing to allow him
to withdraw his plea,” reinstating the original three Counts of the indictment, and
thereby subjecting Simmons to the potential prison terms described above. Id. at 17.
The District Court then addressed Simmons, noting that it, too, had considered
allowing him to withdraw his guilty plea “and we’ll go to trial and the whole thing.
And . . . if we went to trial and a jury agreed that you had the 119 plants and you had
all these weapons, your Sentencing Guideline range starts at about 180 months,
doesn’t it?” Id. at 18. Simmons acknowledged that he faced this potential sentencing
exposure, and when the court then observed that withdrawing the guilty plea and
going to trial “doesn’t sound very wise to me,” Simmons agreed and stated that “in
light of the comments that [the government] just made, I would like to tell you, I
appreciate [the government] not filing that motion.” Id. The court then denied
Simmons’s request to withdraw his guilty plea and imposed two consecutive sixty-
month sentences to run concurrently with a sentence Simmons was already serving
on the unrelated drug charge.

       On appeal, Simmons first argues that because Count Two of the indictment
misstated the elements of § 924(c) and because the District Court failed to properly
inform him of the elements of the offense as required by Rule 11, his guilty plea was
invalid and he should be “permitted to withdraw his plea of guilty to Count [Two].”
Second Supp. Br. of Appellant at 22; see United States v. Todd, 521 F.3d 891, 895

                                          -4-
(8th Cir. 2008) (noting that a challenge to an indictment is waived by a valid guilty
plea). Simmons did not raise his Rule 11 argument before the District Court, so we
review only for plain error. See United States v. Vonn, 535 U.S. 55, 58–59 (2002).
Under this standard, Simmons must show not only that the District Court committed
a plain error in complying with Rule 11, but also that any such error affected his
substantial rights. A Rule 11 violation “affects substantial rights only where the
defendant shows a reasonable probability that but for the error, he would not have
entered a guilty plea.” Todd, 521 F.3d at 896.

       As noted above, Count Two of the indictment charged that Simmons “did
knowingly and intentionally possess firearms” “during and in relation to a
drug-trafficking crime.” Section 924(c), however, applies to any person who (1)
“uses or carries a firearm” “during and in relation to any . . . drug trafficking crime”
or (2) “possesses a firearm” “in furtherance of any such crime.” 18 U.S.C. § 924(c).
The government concedes that the indictment was defective and should have charged
Simmons with possessing firearms “in furtherance of” a drug-trafficking offense.2
Supp. Br. of Appellee at 10. And we agree with Simmons that because the District
Court did not accurately inform him of the elements of the § 924(c) offense at the
change-of-plea hearing, the court violated Rule 11 of the Federal Rules of Criminal
Procedure. See Fed. R. Crim. P. 11(b)(1)(G) (instructing that a district court must


      2
        Once again, we find ourselves expending considerable judicial resources
resolving this conflation issue when it could have been avoided altogether if the
language in Count Two of the indictment had carefully adhered to the statutory
language of § 924(c). This is not, as the government argues, “a virtually
imperceptible distinction” or a “seemingly metaphysical distinction.” Supp. Br. of
Appellee at 15, 8; see United States v. Gamboa, 439 F.3d 796, 809–10 (8th Cir.)
(noting that proof for an “in furtherance of” charge under § 924(c) differs from that
for a “during and in relation to” charge), cert. denied, 549 U.S. 1042 (2006).
Accordingly, we again caution the government against “conflat[ing] the two
alternative offenses defined in § 924(c).” United States v. Todd, 521 F.3d 891, 895
(8th Cir. 2008).

                                          -5-
inform the defendant of “the nature of each charge to which” he is pleading before
accepting a guilty plea). Accordingly, Simmons has shown an error that was plain.
But to obtain relief, he must also show a reasonable probability that but for the error,
he would not have entered a guilty plea.

        Simmons argues that the government could not prove that he possessed the
firearms in furtherance of his drug-trafficking activity in violation of § 924(c) because
the firearms recovered at the residence were locked in a safe. According to Simmons,
the government therefore could not have established the requisite nexus between the
firearms and the drug-trafficking activity, and had the court complied with Rule 11
by properly informing him of the elements of the § 924(c) charge, he would have
recognized this shortcoming in the government’s case and would have put the
government to its burden of proof at trial.

        To be sure, evidence of “simultaneous possession of drugs and . . . firearm[s]”
is, by itself, insufficient to sustain a conviction for possessing a firearm in furtherance
of drug-trafficking activity. United States v. Hamilton, 332 F.3d 1144, 1150 (8th Cir.
2003). Instead, the government must establish a nexus between the possession of the
firearm and the drug-trafficking offense. Id. This nexus may be established, for
example, when a firearm and drugs are discovered in close proximity “so as to
support an inference that the firearm is for the protection of the drugs.” United States
v. Saddler, 538 F.3d 879, 888 (8th Cir.) (citation to quoted case omitted), cert. denied,
555 U.S. 1088 (2008). In this case, however, no such inference is required.
Although the government’s evidence did not show that the drugs and firearms were
in close proximity when they were discovered and seized, Simmons admitted that he
possessed the firearms specifically to protect the drugs he kept at the residence.
PSR ¶ 11 (stating that Simmons admitted that “he owned [the firearms] for home
protection, since he was buying cocaine from dealers”); United States v. Paz, 411
F.3d 906, 909 (8th Cir. 2005) (“Facts presented in a PSR are deemed admitted unless
the defendant objects to those facts.”); Tr. of Change of Plea Hr’g at 15 (describing

                                           -6-
Simmons’s admission that he bought the firearms “for home protection . . . regarding
cocaine transactions”).

       Moreover, when the court and the government addressed Simmons regarding
the consequences of withdrawing his guilty plea, namely, that the government would
reinstate the original three charges and Simmons would face a Guidelines “range
start[ing] at about 180 months,” Simmons acknowledged that it would not be “very
wise” to withdraw his plea and expressed relief that the government had not conceded
to his motion to withdraw and refiled the original charges. Tr. of Sent. Hr’g at 18.
And even now, Simmons does not seek to withdraw his guilty plea in its entirety.
Rather, he seeks only to withdraw his plea to Count Two, thereby avoiding the
consequences of his guilty plea to Count Two but retaining the benefits of his guilty
plea to the reduced charge under Count One and the government’s dismissal of Count
Three. See Todd, 521 F.3d at 897 (stating that under the plain-error rule in the
context of a Rule 11 violation, a defendant must show a reasonable probability that
he would have relinquished the benefits of his plea agreement and stood trial on all
counts charged in the original indictment).

       In sum, we conclude that Simmons has not shown a reasonable probability that
he would have declined to plead guilty, relinquished the substantial benefits of his
plea agreement, and insisted on proceeding to trial on all three original Counts of the
indictment had the court accurately advised him of the elements of the § 924 violation
charged in Count Two. Accordingly, Simmons is not entitled to relief, and we affirm
the judgment of the District Court.
                       ______________________________




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