                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 04-2587
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                                v.

ANDRE JONES,
                                           Defendant-Appellant.
                         ____________
         Appeal from the United States District Court for
        the Northern District of Illinois, Eastern Division.
        No. 01 CR 967—Harry D. Leinenweber, Judge.
                         ____________
  ARGUED FEBRUARY 16, 2005—DECIDED AUGUST 11, 2005
                   ____________




  Before EASTERBROOK, WOOD, and SYKES, Circuit Judges.
  SYKES, Circuit Judge. This armed bank robbery case
raises the issue of whether the imposition of a mandatory
minimum sentence based upon judicial fact-finding remains
constitutional after United States v. Booker, 125 S. Ct. 738
(2005). The defendant also argues that the district court’s
jury instructions constructively amended the indictment
and that the evidence was insufficient to convict him.
  We affirm. In Harris v. United States, 536 U.S. 545
(2002), the Supreme Court held that the rule of Apprendi v.
New Jersey, 530 U.S. 466 (2000), does not apply to man-
2                                              No. 04-2587

datory minimum penalties. Booker extended the Apprendi
rule to the Federal Sentencing Guidelines but did not alter
Harris’s treatment of statutory mandatory minimums. See
United States v. Duncan, No. 04-1916, 2005 WL 1540249, at
*2 (7th Cir. July 1, 2005). We also conclude that the
evidence was sufficient to convict and the jury instructions
did not constructively amend the indictment.


                     I. Background
  Andre Jones started working at the Continental
Community Bank in Maywood, Illinois, in 1997. He worked
his way up to junior accountant and was eventually trans-
ferred to the bank’s branch in Villa Park, Illinois. In
February 2001, having just been trained on the electronic
money transfer system the bank used for its vendor pay-
ments, Jones initiated a scheme of fraudulent electronic
transfers to fictitious vendors, splitting the proceeds with
an accomplice, Jeptha McDaniel. All told, Jones and
McDaniel managed to embezzle nearly $83,000 of the
bank’s money before an investigation was launched. In
August 2001, after learning that he was under investiga-
tion, Jones stopped showing up at work.
  In early November 2001, Jones and McDaniel decided to
steal the bank’s money using a more direct method— armed
robbery. At about 6:30 a.m. on November 8, 2001, McDaniel
entered Continental’s Maywood branch and pointed a gun
at the security officer, Thomas Duffy. Duffy, though elderly
and possessed of a heart condition, did not submit; he began
to struggle with McDaniel, at which point Jones entered the
bank and told McDaniel to shoot Duffy if he did not acqui-
esce. In the meantime, McDaniel had taken Duffy’s gun,
and he gave one of the two guns to Jones. While McDaniel
held Duffy at gunpoint, Jones retrieved a “money cart” but
could not open it. The two decided to take the entire money
cart, and McDaniel began pushing it toward the rear door
of the bank while Jones “covered” Duffy with the gun.
No. 04-2587                                                 3

  Before they could escape with the money cart,
Officer David Harris of the Maywood Police Department
arrived on the scene. As Jones and McDaniel fled the bank,
one of them fired a shot at Officer Harris. Duffy and Harris
identified Jones as the robber who fired the shot; Jones
denied this. Harris returned fire, but Jones and McDaniel
managed to escape. They were later apprehended; Jones was
charged with attempted bank robbery, use of a firearm
during a crime of violence, and bank fraud.1 He was con-
victed after a jury trial.
   At sentencing the district court adopted the findings con-
tained in the presentence report, which included a finding
that Jones had discharged the firearm during the course of
the attempted robbery. Accordingly, the court imposed the
mandatory minimum ten-year term that applies to use of a
firearm during a crime of violence if the firearm is dis-
charged. See 18 U.S.C. § 924(c)(1)(A)(iii) (specifying a
mandatory minimum sentence of ten years if a firearm is
discharged during a crime of violence). The district court
also imposed concurrent 37-month terms on the attempted
bank robbery and bank fraud counts, consecutive to the
mandatory minimum ten-year term. Jones appeals only his
conviction for use of a firearm and the mandatory minimum
ten-year sentence imposed upon the district court’s finding
that he had discharged the firearm.


                      II. Discussion
  Count Two of the indictment charged Jones with violating
18 U.S.C. § 924(c)(1)(A), which provides:
    Except to the extent that a greater minimum sentence
    is otherwise provided by this subsection or by any other



1
  McDaniel was also charged with these crimes as well as being
a felon in possession of a firearm. He pled guilty.
4                                                 No. 04-2587

     provision of law, any person who, during and in relation
     to any crime of violence or drug trafficking crime . . .
     uses or carries a firearm, or who, in furtherance of any
     such crime, possesses a firearm, shall, in addition to the
     punishment provided for such crime of violence or drug
     trafficking crime—
         (i) be sentenced to a term of imprisonment of not
         less than 5 years;
         (ii) if the firearm is brandished, be sentenced to a
         term of imprisonment of not less than 7 years; and
         (iii) if the firearm is discharged, be sentenced to a
         term of imprisonment of not less than 10 years.
Attempted bank robbery qualifies as a “crime of violence.”
See 18 U.S.C. §§ 924(c)(3)(A)-(B) and 2113(a).


    A. Sufficiency of the evidence
  Jones argues first that the district court erred in denying
his postverdict motion for judgment of acquittal based on
insufficiency of the evidence to convict him under
§ 924(c)(1)(A). He has a steep burden. We review the evi-
dence in the light most favorable to the government, draw-
ing all reasonable inferences in its favor. United States v.
Jones, 371 F.3d 363, 365 (7th Cir. 2004). The evidence is
sufficient to convict if “any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original); Jones, 371 F.3d at 366.
   Jones claims there was insufficient evidence for the jury
to find that he discharged the gun during the attempted
robbery; he says the evidence established only that a shot
was fired and no one was hit, but did not establish who
fired the gun. This argument is well wide of the mark. The
government did not need to prove that Jones discharged a
No. 04-2587                                                       5

firearm to convict him of violating § 924(c)(1)(A), only that
he used or carried one during the crime, and of that there
was ample evidence. Duffy, the security guard, testified
that both robbers used and carried guns. Jones himself
admitted that he “carried” a gun during the robbery, and
the security cameras confirmed as much. Setting aside the
issue of who fired the shot at Officer Harris, there was
sufficient evidence to support the verdict that Jones “used
or carried” a gun during a crime of violence.2 The judge’s
finding at sentencing that Jones discharged the firearm is
relevant to Jones’s challenge to the imposition of the stat-
utory mandatory minimum sentence, which we address
below.


    B. Constructive amendment of the indictment
  Jones also argues that the district court’s jury instruc-
tions constructively amended the charges contained in the
indictment. He did not object to the instructions as given,
so our review is for plain error. United States v. Colvin, 353
F.3d 569, 577 (7th Cir. 2003); United States v. Cusimano,
148 F.3d 824, 828 n.3 (7th Cir. 1998). Constructive amend-
ment of the indictment can occur “when either the govern-
ment (usually during its presentation of evidence and/or its
argument), the court (usually through its instructions to the
jury), or both, broadens the possible bases for conviction
beyond those presented by the grand jury.” Cusimano, 148
F.3d at 829 (quoting United States v. Floresca, 38 F.3d 706,
710 (4th Cir. 1994)). A jury instruction that constructively
amends the indictment implicates the defendant’s right to


2
   The jury was instructed that “use” of a firearm meant active
employment of the firearm in some way related to the crime being
committed. See Bailey v. United States, 516 U.S. 137, 148 (1995)
( “use” includes “brandishing, displaying, bartering, striking with,
and, most obviously, firing or attempting to fire a firearm”).
6                                               No. 04-2587

have the grand jury’s charges control the offenses actually
tried—“a court cannot permit a defendant to be tried on
charges that are not made in the indictment against him.”
Stirone v. United States, 361 U.S. 212, 217 (1960). Thus, the
question is whether the jury instructions used here allowed
a conviction based on charges not contained in the indict-
ment.
  Count Two of the indictment charged that Jones “used,
carried, brandished, and discharged a firearm, during and
in relation to the commission of a crime of violence, namely
bank robbery.” The jury instruction, however, used the
disjunctive, not the conjunctive; the jury was instructed
that it should find the defendant guilty if he “knowingly
used or carried a firearm,” and that “ ‘[u]se’ may include
brandishing, displaying, making reference to a firearm in
the defendant’s possession, or firing a firearm.” Jones
argues that the substitution of “or” for “and” constructively
amended the charges contained in the indictment.
  Jones’s argument is foreclosed by logic and by our deci-
sion in United States v. Muelbl, 739 F.2d 1175 (7th Cir.
1984). A grand jury that charged Jones with “using, carry-
ing, brandishing, and discharging the firearm” must neces-
sarily have found probable cause that Jones committed each
of those four actions. The jury instruction allowing the jury
to find guilt based upon any one of those actions thus did
not impermissibly broaden the scope of the indictment. In
Muebl, we addressed at length a similar conjunctive/
disjunctive constructive amendment argument. There, the
defendant was indicted for conspiracy to distribute, dis-
pense, and possess with intent to distribute marijuana,
cocaine, and methaqualone, in violation of 21 U.S.C.
§ 841(a)(1).
  As in the present case, the district court in Muelbl had
instructed the jury that it could convict if it found the
defendant was a member of a conspiracy to distribute,
No. 04-2587                                                  7

dispense, or possess with intent to distribute marijuana,
cocaine, or methaqualone. We rejected the defendant’s
constructive amendment argument, holding that “when the
grand jury indicted the defendant for conspiracy to violate
federal drug laws with regard to these three drugs[,] . . . it
also charged a conspiracy to distribute and possess with
intent to distribute each of these drugs individually.” Id. at
1181. In other words, the violation for one drug was a
subset of the indictment for all of the drugs; the jury
instruction’s use of the word “or” was implicitly subsumed
by the indictment’s “and,” and the jury instructions there-
fore did not impermissibly broaden the scope of the indict-
ment. The same is true here. See also Griffin v. United
States, 502 U.S. 46, 56 (1991); United States v. Durman, 30
F.3d 803, 810 (7th Cir. 1994) (“ ‘[T]he general rule is that
when a jury returns a guilty verdict on an indictment
charging several acts in the conjunctive, . . . the verdict
stands if the evidence is sufficient with respect to any of the
acts charged.’ . . . This rule extends to a trial court’s jury
instructions in the disjunctive in the context of a conjunc-
tively worded indictment.”) (quoting United States v.
Cusumano, 943 F.2d 305, 311 (3d Cir. 1991)).


  C. Mandatory minimum sentence
  Finally, Jones takes issue with the imposition of the ten-
year mandatory minimum sentence required by § 924(c)(1)
(A)(iii). As noted above, the statute specifies graduated
mandatory minimums depending on whether a defendant
uses or carries (5 years), brandishes (7 years), or discharges
(10 years) a firearm during a crime of violence. The district
court adopted the findings in the presentence report, which
included a finding that Jones had discharged the firearm.
This finding was supported by the testimony of Duffy and
Harris, both of whom identified Jones as the robber who
8                                                 No. 04-2587

fired the gun at Harris. The court accordingly imposed the
ten-year mandatory minimum sentence pursuant to
§ 924(c)(1)(A)(iii).
  Jones argues for the first time on appeal that the im-
position of the mandatory minimum sentence based upon
facts found by the judge deprived him of his right to trial by
jury. Plain-error review applies, and Jones has not devel-
oped his argument much beyond the invocation of Booker.
The Supreme Court’s decision in Booker applied the rule of
Apprendi and Blakely v. Washington, 542 U.S. 296 (2004),
to the Federal Sentencing Guidelines and found a Sixth
Amendment violation:
    [W]e reaffirm our holding in Apprendi: Any fact (other
    than a prior conviction) which is necessary to support a
    sentence exceeding the maximum authorized by the
    facts established by a plea of guilty or a jury verdict
    must be admitted by the defendant or proved to a jury
    beyond a reasonable doubt.
Booker, 125 S. Ct. at 756. The remedial opinion in Booker
severed the provision in the Sentencing Reform Act that
made the Guidelines mandatory, rendering them advisory.
Id. at 756-57. Although Booker invalidated the mandatory
application of the Sentencing Guidelines, the decision did
not disturb the Supreme Court’s recent precedent regarding
the constitutionality of statutory mandatory minimum
penalties.
  In 2002 the Court specifically addressed the impact of
Apprendi on statutory mandatory minimums under 18
U.S.C. § 924(c)(1)(A), the same statute at issue here. Harris,
536 U.S. at 550. Justice Kennedy’s plurality opinion in
Harris3 explained the distinction between fact-finding that
sets mandatory minimums and fact-finding that directs the


3
  Justice Kennedy was joined by Chief Justice Rehnquist, Justice
O’Connor, and Justice Scalia.
No. 04-2587                                              9

application of mandatory sentencing factors used to in-
crease a sentence:
   Apprendi said that any fact extending the defendant’s
   sentence beyond the maximum authorized by the jury’s
   verdict would have been considered an element of an
   aggravated crime—and thus the domain of the jury—
   by those who framed the Bill of Rights. The same
   cannot be said of a fact increasing the mandatory
   minimum (but not extending the sentence beyond the
   statutory maximum), for the jury’s verdict has autho-
   rized the judge to impose the minimum with or without
   the finding.
Harris, 536 U.S. at 557. Fourteen years before Apprendi, in
McMillan v. Pennsylvania, 477 U.S. 79, 87-88 (1986), the
Court had rejected a constitutional challenge to mandatory
minimum penalties. Justice Kennedy’s plurality opinion in
Harris reaffirmed McMillan and distinguished Apprendi:
   The factual finding in Apprendi extended the power of
   the judge, allowing him or her to impose a punishment
   exceeding what was authorized by the jury. The finding
   in McMillan restrained the judge’s power, limiting his
   or her choices within the authorized range. It is quite
   consistent to maintain that the former type of fact must
   be submitted to the jury while the latter need not be.
Harris, 536 US. at 567. Justice Breyer concurred in Harris,
disagreeing that Apprendi could be “easily distinguish[ed]”
but joining the plurality “to the extent that it holds that
Apprendi does not apply to mandatory minimums.” Id. at
569 (Breyer, J., concurring).
  Although there may be some tension between Booker and
Harris, the Supreme Court’s extension of the Apprendi rule
in Booker does not enlarge the underlying constitutional
argument, which was duly considered by the Court in
Harris. The distinction drawn by the Court in Harris ap-
10                                              No. 04-2587

pears to have survived—that is, that judicially found facts
used to set minimum sentences are not properly deemed
“elements” of the offense for Sixth Amendment purposes
because the jury’s verdict authorizes the judge to impose
the minimum sentence with or without the judicial fact-
finding. See Duncan, 2005 WL 1540249, at *2 (“nothing in
Booker . . . suggests that the Court reconsidered, much less
overruled, its holding in Harris”); Wilson v. United States,
No. 03-3398, 2005 WL 1661264, at *2 (7th Cir. July 18,
2005); United States v. Rivera, 411 F.3d 864, 866 (7th Cir.
2005) (judges may continue to find facts that set a statutory
minimum sentence “even after Apprendi”) (citing Harris,
536 U.S. 545 (2002)). In any event, to the extent that Booker
has unsettled Harris, it is the Supreme Court’s preroga-
tive—not ours—to say so. State Oil Co. v. Khan, 522 U.S. 3,
20 (1997); Duncan, 2005 WL 1540249, at *3.
  Here, although the district court’s finding that Jones
discharged the firearm increased the applicable mandatory
minimum sentence, the jury’s verdict authorized the judge
to impose any sentence up to the maximum of twenty years
in prison. See 18 U.S.C. § 2113(a). Under Harris, which the
Supreme Court did not disturb in Booker, imposition of the
ten-year mandatory minimum sentence for violation of
§ 924(c)(1)(A)(iii) did not violate the Sixth Amendment.
  For the foregoing reasons, the judgment of the district
court is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit


                   USCA-02-C-0072—8-11-05
