     Case: 09-10078     Document: 00511151459          Page: 1    Date Filed: 06/23/2010




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

                                                 FILED
                                                                            June 23, 2010
                                       No. 09-10078
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

LARRY EDWARD PETERSEN,

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                         for the Northern District of Texas
                            USDC No. 3:07-CR-337-ALL


Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit
Judges.

PER CURIAM:*
        Appellant Larry Petersen was convicted of being a felon in possession of
a firearm and possession with intent to distribute 50 or more grams of
methamphetamine. On appeal, he raises three issues: (1) whether the district
court erred in not instructing the jury that to reach a conviction it had to find
Petersen knew the quantity of methamphetamine he allegedly possessed;
(2) whether the district court erred in finding that Petersen’s prior Texas



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-10078      Document: 00511151459 Page: 2       Date Filed: 06/23/2010
                                   No. 09-10078

convictions for evading arrest by vehicle is a crime of violence under U.S.S.G.
§ 4B1.2; and (3) whether the indictment was constructively amended by the
district court when it charged the jury that it could convict for possession of “a
firearm” rather than the firearm specified in the indictment. The first two
issues are clearly foreclosed by circuit precedent. The third issue is clearly
resolved by the trial record and precedent. For the reasons stated below, we
affirm.
          On the first issue, the Appellant relies on Flores-Figueroa v. United
States, 129 S. Ct. 1886 (2009), to argue that the district court erred in failing to
instruct the jury that it had to find that Petersen knew the quantity of drugs he
possessed. See 21 U.S.C. § 841. This court held otherwise in a pre-Flores case,
United States v. Gamez-Gonzalez, 319 F.3d 695 (5th Cir. 2003). We reaffirmed
that holding post-Flores in United States v. Betancourt, 586 F.3d 303, 308-09
(5th Cir. 2009) (“A common-sense, natural reading of § 841 leads to the
inevitable conclusion that Congress did not intend for the word ‘knowingly’ in
§841(a) to modify language in § 841(b).”).
      The Appellant’s second argument is that the district court erred in finding
that his prior Texas conviction for evading arrest by vehicle is a “crime of
violence” for purpose of calculating his Guidelines sentence.         However, he
concedes that this argument is foreclosed by United States v. Harrimon, 568 F.3d
531, 534 (5th Cir. 2009).
          The Appellant’s third contention is that the district court constructively
amended the indictment by instructing the jury that it could convict for
possession of any firearm, rather than the specific firearm identified in the
indictment. Count One of the indictment alleged that Petersen possessed “a
Ruger, model Security Six, .357 caliber revolver, bearing serial number 159-
91743. . . .” Petersen was arrested following a high-speed chase. In the grass
near where Petersen’s truck had come to a stop, the police found a cylinder
containing methamphetamine that Petersen admitted was his. Eight days later,

                                          2
   Case: 09-10078    Document: 00511151459 Page: 3        Date Filed: 06/23/2010
                                 No. 09-10078

a citizen spotted a .357 caliber Ruger revolver beside the highway near where
Petersen had been apprehended. The police later identified it as a stainless
Ruger .357 magnum revolver with wooden grips, bearing serial number 159-
91743. At trial, the government presented, in part as intent evidence under
Federal Rule of Evidence 404(b), a video of Petersen’s admission that he
possessed several firearms, including a .38 caliber Ruger that was brushed
nickle with wooden grips. Petersen claimed to have tossed the .38 caliber gun
in a dumpster several days earlier. A .357 revolver appears nearly identical to
a .38 revolver and the two guns use the same ammunition. The government’s
theory was that Petersen or his passenger tossed the gun out of the truck during
the chase and shortly before he was stopped. The prosecution argued that
Petersen’s admission that he possessed a .38 caliber Ruger was relevant because
he had likely mistaken the .357 caliber revolver for the .38 caliber model.
      The district court allowed the video evidence to be introduced, but
instructed the jury that it could not consider the evidence in deciding whether
Petersen committed the acts charged in the indictment. However, the district
court instructed that if the jury found Petersen committed the acts charged in
the indictment, the jury could then consider the evidence for the limited purpose
of determining whether Petersen had the state of mind or intent necessary to
commit the crimes.
      During deliberations, the jury sent a written question to the judge, asking:
      Count 1 Question
      First Element
      Is the charge related specifically to the possession of the .357 gun in
      evidence or to the possession of any gun?

The court responded to the question as follows:

      You are hereby instructed that the felon in possession statute
      requires the government to prove beyond a reasonable doubt that
      one, Defendant possessed a firearm on or about October 11, 2007.
      Two, he was a convicted felon at the time of such alleged possession.


                                        3
   Case: 09-10078    Document: 00511151459 Page: 4         Date Filed: 06/23/2010
                                 No. 09-10078

      And three, the firearm had traveled in or [a]ffected interstate
      commerce. You are further referred to the instruction pertaining to
      this count on page 11 of the Court’s instructions to the jury.

      In support of his constructive amendment claim, Petersen argues that the
indictment alleged that he possessed one specific firearm, a .357 caliber revolver,
but the evidence and the district court’s instructions in response to the jury’s
question authorized the jury to convict for possession of other firearms—firearms
that Petersen admitted to possessing. We disagree. The district court’s response
to the jury’s question incorporated its previous instruction on the indictment
found on page 11:
      Title 18, United States Code, Section 922(g)(1), make it a crime for
      a convicted felon to possess a firearm. For you to find Defendant
      Petersen guilty of this crime, you must be convinced that the
      government has proved each of the following beyond a reasonable
      doubt:
             First: That Defendant knowingly possessed a firearm,
             as charged. The term “firearm” means any weapon that
             will or is designed to or may readily be converted to
             expel a projectile by the action of an explosion.

In addition, the district court gave careful and repeated instructions on the
indictment and limiting the use of 404(b) evidence. The jury is presumed to
follow the district court’s instructions. See Zafiro v. United States, 506 U.S. 534,
540 (1993). In this case, the district court’s instructions were sufficient for the
jury to convict based on the allegations in Count One of the indictment.
      Further, even if the jury did not follow the district court’s instructions and
believed that it could have convicted for possession of either the .357 gun, as
charged, or a .38 gun, as evidence suggested Petersen possessed, this variance
does not amount to a constructive amendment. See United States v. Guidry,
406 F.3d 314, 322 (5th Cir. 2005). No constructive amendment arises where the
evidence proves facts different from those alleged in the indictment, but does not
modify an essential element of the charged offense. United States v. Munoz,


                                         4
  Case: 09-10078    Document: 00511151459 Page: 5     Date Filed: 06/23/2010
                                No. 09-10078

150 F.3d 401, 417 (5th Cir. 1998). The appellant concedes that the caliber and
serial number of the gun are not essential elements of the charged offense.
Petersen has failed to demonstrate a material constructive amendment that
would require vacating his conviction.
                                Conclusion
      For the reasons stated above, we affirm.
                                                                AFFIRMED.




                                         5
