     Case: 14-40568      Document: 00513029297         Page: 1    Date Filed: 05/04/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit


                                    No. 14-40568                                 FILED
                                  Summary Calendar                            May 4, 2015
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JERRY DON CASTLEBERRY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 6:13-CR-58


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Jerry Don Castleberry was convicted by a jury of conspiracy to possess
with intent to distribute methamphetamine; possession with intent to
distribute methamphetamine; and possession of a firearm in furtherance of a
drug trafficking crime. He was sentenced to 181 months of imprisonment and
five years of supervised release.         On appeal, Castleberry argues that the
district court abused its discretion in refusing to instruct the jury that it had


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-40568

to make a unanimous finding as to which firearm he possessed in furtherance
of a drug crime.
      Castleberry objected to the exclusion of the unanimity instruction at
trial. Accordingly, this court reviews the exclusion of the requested instruction
“under an abuse of discretion standard, affording the trial court substantial
latitude in describing the law to the jurors.” United States v. Rios, 636 F.3d
168, 171 (5th Cir. 2011) (internal quotation marks and citation omitted).
Whether a unanimity instruction is required depends on “which facts are
necessary to constitute the crime and to require consensus on those facts.”
United States v. Villegas, 494 F.3d 513, 514 (5th Cir. 2007). In making this
determination, courts should consider “[s]tatutory language and construction,
legislative intent, historical treatment of the crime by the courts, duplicity
concerns with respect to defining the offense, and the likelihood of jury
confusion in light of the specific facts presented.” United States v. Correa-
Ventura, 6 F.3d 1070, 1082 (5th Cir. 1993).
      In Correa-Ventura, we held that the statutory and legislative history of
18 U.S.C. § 924(c) does not suggest that unanimity as to the type of firearm is
necessary for a conviction of the offense. Id. at 1083-85. We also noted that
the jurisprudential treatment of § 924(c) indicates that a § 924(c) violation is
a single offense regardless of the number of firearms used or carried, which
alleviates duplicity concerns. Id. at 1085. Finally, like Correa-Ventura, the
facts of Castleberry’s case do not indicate a likelihood of juror confusion. The
evidence indicates that 97.3 grams of methamphetamine was discovered in
Castleberry’s truck, a truck he used to transport drugs to his residence. A
subsequent search of his residence revealed a number of firearms, a majority
of which were loaded, operable, and found in Castleberry’s master bedroom. In
addition, officers found more drugs, baggies, and drug ledgers in Castleberry’s



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                                 No. 14-40568

master bedroom. Stasha Benfield, Castleberry’s girlfriend, was present during
the search and was found in possession of a .22 pistol. She testified that the
firearms in the residence belonged to Castleberry and that most were kept
loaded for protection due to their drug trafficking operation.
      Additionally, the court instructed the jury that it had to find that
Castleberry “knowingly possessed a firearm in furtherance of the Defendant’s
commission of the crime charged in count one.”            Additionally, the court
explained “that the firearm must have some purpose, role or effect with respect
to the drug trafficking crime.” The court further instructed that a “verdict
must be unanimous on each count of the indictment.” These facts indicate that
there was little to no likelihood of juror confusion. See Correa-Ventura, 6 F.3d
at 1086. Accordingly, the judgment of the district court is AFFIRMED.




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