       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Clay                      No. 02-1362
    ELECTRONIC CITATION: 2003 FED App. 0352P (6th Cir.)
                File Name: 03a0352p.06                    Patricia C. Uetz, ASSISTANT UNITED STATES
                                                          ATTORNEY, Grand Rapids, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                                               _________________
              FOR THE SIXTH CIRCUIT                                              OPINION
                _________________                                            _________________

 UNITED STATES OF AMERICA , X                                RONALD LEE GILMAN, Circuit Judge. Corey Clay was
                                                          arrested as part of a drug investigation in Detroit, Michigan.
             Plaintiff-Appellee, -                        He was charged in a two-count indictment with possession of
                                   -
                                   -   No. 02-1362        a controlled substance and for being a felon in possession of
            v.                     -                      a firearm. During his trial, Clay twice moved to dismiss the
                                    >                     charges pursuant to Rule 29 of the Federal Rules of Criminal
                                   ,                      Procedure. These motions were denied.
 COREY CLAY,                       -
          Defendant-Appellant. -                            After Clay was convicted by a jury on both counts, the
                                  N                       district court sentenced him to 63 months of imprisonment
       Appeal from the United States District Court       and two years of supervised release. Clay contends on appeal
    for the Eastern District of Michigan at Ann Arbor.    that (1) the evidence was insufficient to establish his guilt,
   No. 01-90014—Marianne O. Battani, District Judge.      (2) the district court erred in apprising the jury pool of his
                                                          prior drug conviction, and (3) he should not have received a
              Argued: September 12, 2003                  sentencing enhancement. For the reasons set forth below, we
                                                          AFFIRM the judgment of the district court.
          Decided and Filed: October 2, 2003
                                                                              I. BACKGROUND
  Before: MERRITT, MOORE, and GILMAN, Circuit
                    Judges.                                 On March 3, 2001, three police officers were investigating
                                                          the possibility of drug dealing at an uninhabited apartment in
                  _________________                       Detroit, Michigan. They walked up to the open front door,
                                                          where they observed suspicious activity inside. The officers
                       COUNSEL                            noticed two individuals in the apartment. One of the
                                                          individuals, later identified as Clay, ran toward the back of
ARGUED: Natasha D. Thompson, FEDERAL PUBLIC               the apartment and tossed a plastic bag on the floor.
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
Patricia C. Uetz, ASSISTANT UNITED STATES                   While one officer apprehended Clay, another officer
ATTORNEY, Grand Rapids, Michigan, for Appellee.           retrieved the bag, which contained an off-white lumpy
ON BRIEF:      Rita Chastang, FEDERAL PUBLIC              material that one of the officers later identified as crack
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.       cocaine. The third officer searched Clay and found a firearm

                            1
No. 02-1362                        United States v. Clay      3    4    United States v. Clay                        No. 02-1362

and $575 on his person. A laboratory report showed that the        which the court again denied. A guilty verdict was returned
material weighed 1.1 grams and contained cocaine.                  on both counts.
  Clay was indicted on one count of possession of “a                 The United States Probation Office calculated the
controlled substance, to wit: approximately 1.6 grams of a         Sentencing Guidelines range to be 63 to 78 months. This
mixture of substance containing crack cocaine, also known as       included a four-level increase in the base offense level
cocaine base,” in violation of 21 U.S.C. § 844(a), and on one      because Clay “possessed the firearm in connection with
count of being a felon in possession of a firearm, in violation    another felony offense, namely, possession of cocaine base.”
of 18 U.S.C. § 922(g). (No explanation is found in the record      Clay filed an objection to the Presentence Report and a
regarding the discrepancy between the 1.1 grams stated in the      motion for reconsideration of his Rule 29 motion.
laboratory report and the 1.6 grams alleged in the indictment.)
The government soon thereafter formally notified Clay that,          At the sentencing hearing, the district court denied the
upon conviction under § 844(a), it would rely upon a prior         motion for reconsideration and found that the four-level
conviction “as a basis for a sentence to increased punishment      enhancement was applicable. Clay was sentenced to
under 21 U.S.C. § 841(b)(1)(A).” The reference to                  concurrent terms of imprisonment of 63 months on Count
§ 841(b)(1)(A) was apparently mistaken, however, because           One and 24 months on Count Two. The court also sentenced
the amount of illegal drugs allegedly possessed was less than      Clay to two years of supervised release.
required to sustain a charge under that section. The prior
conviction identified in the information was later used as the                            II. ANALYSIS
basis for an enhanced sentence in connection with the
§ 844(a) offense.                                                  A. Rule 29 motions

   Clay’s trial commenced in November of 2001. Prior to jury         “A Rule 29 motion is a challenge to the sufficiency of the
selection, the parties stipulated that he was a convicted felon    evidence. [W]hen the sufficiency of the evidence is
for purposes of the count relating to being a felon in             challenged on appeal, the standard of review is whether, after
possession of a firearm. The district court therefore ruled that   viewing the evidence in the light most favorable to the
it would not allow any reference to the previous conviction        prosecution, any rational trier of fact could have found the
during trial. Nonetheless, when the court read the                 essential elements of the crime . . . .” United States v. Jones,
superseding indictment to the prospective jurors, it               102 F.3d 804, 807 (6th Cir. 1996) (emphasis and alteration in
inadvertently disclosed to the jury pool that Clay had been        original) (internal quotation marks omitted). “[T]his court
previously convicted of a narcotics offense. Clay’s counsel        may conclude a conviction is supported by sufficient evidence
objected, but did not request a new jury pool. The district        even though the circumstantial evidence does not remove
court overruled the objection.                                     every reasonable hypothesis except that of guilt.” Id. (internal
                                                                   quotation marks omitted).
  A jury was selected and the trial proceeded. At the end of
the government’s proof, Clay moved for the case to be                Clay argues that his Rule 29 motions should have been
dismissed pursuant to Rule 29 of the Federal Rules of              granted because the government did not prove, as it alleged in
Criminal Procedure. The district court denied the motion.          the indictment, that Clay possessed “1.6 grams of a mixture
Clay made another Rule 29 motion at the close of his proof,        or substance containing crack cocaine, also known as cocaine
No. 02-1362                         United States v. Clay       5    6     United States v. Clay                         No. 02-1362

base . . . .” Instead, Clay points out that the City of Detroit’s    (noting that such an error “does not warrant the use of the
laboratory report, which was stipulated to by Clay and the           harmless-error rule”). Although the government admits that
government and was entered into evidence, concluded that             the district court in the present case erred in reading the entire
“[t]he material weighed 1.10 grams and contained                     indictment, it denies that the error was “structural” and
COCAINE.” (Emphasis in the original.) The government                 instead maintains that it was harmless.
responds by arguing that the evidence adduced at trial
reflected the fact that the bag contained crack cocaine and             This court has applied a harmless-error analysis in similar
that, in any event, the penalty imposed was no greater than the      situations. See Myers v. United States, 198 F.3d 615, 619 (6th
maximum allowable period of incarceration for the possession         Cir. 1999) (holding that the district court’s reading to the jury
of 1.1 grams of powder cocaine. It also notes that the City of       the nature of the defendant’s prior offenses was harmless
Detroit’s laboratory reports do not distinguish between              error); United States v. McFerren, No. 96-5458, 1998 WL
powder cocaine and crack cocaine, calling both simply                180514, at *3-4 (6th Cir. Apr. 8, 1998) (per curiam) (applying
“cocaine.”                                                           the harmless-error standard to the defendant’s claim that the
                                                                     district court erred when it read to the jury the indictment that
  No distinction is made between crack and powder cocaine            contained references to his prior convictions); see also United
in 21 U.S.C. § 844(a) either. Instead, this section states that      States v. Turner, 565 F.2d 539, 541 (8th Cir. 1977) (per
“[i]t shall be unlawful for any person knowingly or                  curiam) (“[O]nce the trial court had been informed of the
intentionally to possess a controlled substance . . . .” Thus,       stipulation of counsel, he should have read the indictment to
whether Clay possessed crack or powder cocaine, we                   the jury without reference to the nature of the felony
conclude that there was sufficient evidence for a rational trier     conviction. However, we do not feel that this error was
of fact to find that Clay violated 21 U.S.C. § 844(a). The           unduly prejudicial in light of the substantial evidence of
district court, therefore, did not err in denying Clay’s Rule 29     Turner’s guilt.”).
motions.
                                                                       We conclude that Myers is more applicable to the present
B. Reading of indictment to jury pool                                case than Monger. The district court’s inadvertent mistake in
                                                                     disclosing the nature of Clay’s prior conviction to the jury
   Clay also contends that the panel should reverse his              pool was not an error of the same magnitude as failing to
conviction because the district court read the entire indictment     instruct the jury on a lesser included offense. In addition, the
to the jury pool, which included a reference to his prior drug       evidence against Clay was so overwhelming that it is more
conviction. According to Clay, this constituted a “structural        probable than not that the error did not materially affect the
error” warranting reversal. See United States v. Monger, 185         verdict. See United States v. Daniel, 134 F.3d 1259, 1262
F.3d 574, 578 (6th Cir. 1999) (stating that “structural errors,      (6th Cir. 1998) (“[I]t is well settled that an error which is not
. . . [which] infect[] the entire trial process, and necessarily     of constitutional dimension is harmless unless it is more
render[] a trial fundamentally unfair . . . require [the court] to   probable than not that the error materially affected the
reverse” a criminal conviction regardless of the strength of the     verdict.”) (internal quotation marks omitted). Clay was
evidence against the defendant). Monger held that “the               apprehended in an uninhabited apartment under suspicious
district court’s failure to instruct the jury on the lesser          circumstances. When the officers entered, he ran to the back
included offense of simple possession was an intrinsically           of the apartment and threw a plastic bag containing cocaine
harmful structural error which requires us to reverse.” Id.          on the floor. A large sum of cash and a firearm were found
No. 02-1362                         United States v. Clay         7   8     United States v. Clay                         No. 02-1362

on his person. In light of this evidence, the district court’s        governmental error. See United States v. Dodson, 288 F.3d
error in mistakenly reading the nature of Clay’s prior drug           153, 162 (5th Cir. 2002) (holding that, by failing to object, the
conviction to the jury pool was harmless.                             defendant forfeited his right to complain of the government’s
                                                                      failure to inform him of its intent to seek an enhanced
C. Sentencing enhancement                                             sentence upon conviction of a § 844 offense).
   Clay’s final contention is that the district court erred when         “[B]efore an appellate court can correct an error not raised
it enhanced his sentence pursuant to the Sentencing                   at trial, there must be (1) error, (2) that is plain, and (3) that
Guidelines for possessing a firearm during the commission of          affect[s] substantial rights. If all three conditions are met, an
a felony drug offense. “[The] district court’s finding that a         appellate court may then exercise its discretion to notice a
defendant possessed a firearm during a drug crime is a factual        forfeited error, but only if (4) the error seriously affect[s] the
finding subject to the clearly erroneous standard of review.”         fairness, integrity, or public reputation of judicial
United States v. Darwich, 337 F.3d 645, 664 (6th Cir. 2003)           proceedings.” Johnson v. United States, 520 U.S. 461, 466-
(internal quotation marks omitted). “A finding of fact will           67 (1997) (internal quotation marks omitted). Although the
only be clearly erroneous when, although there may be some            government’s notice erroneously cited to § 841(b)(1)(A), it
evidence to support the finding, the reviewing court on the           did so immediately after indicating that the sentence
entire evidence is left with the definite and firm conviction         enhancement would be sought in connection with“the charge
that a mistake has been committed. . . . Where there are two          in Count Two of the Indictment in this case,” which specifies
permissible views of the evidence, the factfinder’s choice            a § 844(a) offense. Additionally, the superceding information
between them cannot be clearly erroneous.” Id. (internal              correctly identified the prior conviction upon which the
quotation marks omitted).                                             government would rely in seeking the enhancement in
                                                                      connection with the § 844(a) offense, and Clay stipulated to
  We first note that the government’s superceding                     the validity of that conviction. We conclude, therefore, that
information mistakenly references 18 U.S.C. § 841(b)(1)(A),           the erroneous citation to § 841(b)(1)(A) did not seriously
under which Clay was never charged. This calls into question          affect the fairness of Clay’s trial, and we proceed to address
the government’s compliance with the formal notice                    the merits of his argument concerning the sentencing
requirement of 21 U.S.C. § 851, which states:                         enhancement.
  No person who stands convicted of an offense under this               United States Sentencing Guidelines § 2K2.1(b)(5)
  part shall be sentenced to increased punishment by                  provides that a defendant’s base offense level should be
  reason of one or more prior convictions, unless before              increased by four levels “[i]f the defendant used or possessed
  trial, or before entry of a plea of guilty, the United States       any firearm or ammunition in connection with another felony
  attorney files an information with the court (and serves            offense.” “This section can only apply if the Government
  a copy of such information on the person or counsel for             establishes by a preponderance of the evidence that the
  such person) stating in writing the previous convictions            defendant possessed or used a gun in connection with another
  to be relied upon . . . .                                           felony.” United States v. Hardin, 248 F.3d 489, 495 (6th Cir.
                                                                      2001).
  Clay, however, failed to raise this issue either in the district
court or on appeal. He has therefore forfeited any claim of
No. 02-1362                      United States v. Clay     9    10    United States v. Clay                        No. 02-1362

  Under the Controlled Substances Act, a drug-related           or used a gun in connection with another felony. Although
offense punishable by a term of imprisonment greater than       the “possession of firearms that is merely coincidental to the
one year under any federal law is a felony offense. 21 U.S.C.   underlying felony offense is insufficient to support the
§ 802(44). Conviction for simple possession under § 844(a)      application of § 2K2.1,” this court has expressly adopted the
of the Controlled Substances Act that follows “a prior          “fortress theory, which concludes that a sufficient connection
conviction for any drug, narcotic, or chemical[] offense        is established if it reasonably appears that the firearms found
chargeable under the law of any State” is punishable by a       . . . are to be used to protect the drugs or otherwise facilitate
maximum term of imprisonment of two years. Because Clay         a drug transaction.” United States v. Ennenga, 263 F.3d 499,
had a prior conviction for a narcotics offense under Michigan   503 (6th Cir. 2001) (internal quotation marks omitted).
law, his violation of § 844(a) qualified as a felony.
                                                                   Clay was apprehended in an uninhabited apartment late at
   The government maintains that the evidentiary burden         night with a bag of cocaine and a large amount of cash on his
shifts to the defendant once the government shows that the      person. He testified that he was in the apartment to have his
defendant possessed or used a gun in connection with another    hair braided by a woman whom he had met “on the streets,”
felony. Citing United States v. McGhee, 882 F.2d 1095 (6th      although the alleged hairstylist was not in the building.
Cir. 1989), the government contends that once it makes this     Finally, Clay was carrying a firearm. See Hardin, 248 F.3d
showing, the defendant must “prove that it was clearly          at 499 (noting that firearms “are ‘tools of the trade’ in drug
improbable that the firearm was connected to the other          transactions”). Based upon this set of facts, the district court
offense.”     McGhee, however, involved a sentencing            did not clearly err when it found that the government had
enhancement pursuant to § 2D1.1(b) of the Sentencing            proven by a preponderance of the evidence that Sentencing
Guidelines, which makes it inapposite to the present case.      Guidelines § 2K2.1(b)(5) was satisfied.
Rather than seek the two-level enhancement provided for in
§ 2D1.1(b), the government sought to apply the four-level                           III. CONCLUSION
enhancement under § 2K2.1(b)(5). This case is therefore
controlled by Hardin, not McGhee. In Hardin, this court           For all of the reasons set forth above, we AFFIRM the
stated that the “clearly improbable” requirement does not       judgment of the district court.
apply in a case where the defendant’s sentence was enhanced
pursuant to § 2K2.1(b)(5), noting that “§ 2D1.1 applies a
burden-shifting component that is not present in
§ 2K2.1(b)(5).” 248 F.3d at 496. The full burden of proof on
the particular enhancement sought therefore remained with
the government.
  Keeping in mind that “the presence of drugs in a home
under a firearm conviction does not ipso facto support
application of a § 2K2.1(b)(5) enhancement,” id. at 501, the
district court must examine the specific facts of the case
before it to determine if the government established by a
preponderance of the evidence that the defendant possessed
