                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4793


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

EDDIE V. CLAY,

                 Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    James R. Spencer, Chief
District Judge. (3:09-cr-00067-JRS-1)


Submitted:   September 20, 2010            Decided:   October 7, 2010


Before KING, GREGORY, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Robert J.
Wagner, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant.     Neil H. MacBride, United States Attorney,
Jessica A. Brumberg, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Eddie V. Clay appeals his conviction for possession of

a    firearm    in     furtherance      of   a     drug    trafficking          crime,     in

violation of 18 U.S.C.A. § 924(c) (West 2000 & Supp 2010).                               Clay

argues that the district court erred by failing to give his

proposed jury instruction that mere possession of a firearm was

insufficient to establish the “in furtherance of” element of the

offense.       Clay also contends that the instruction actually given

by the court improperly shifted the burden of proof from the

Government to him.         We affirm.

            This court reviews a district court’s “decision . . .

to give a jury instruction and the content of an instruction

. . . for abuse of discretion.”                  United States v. Abbas, 74 F.3d

506, 513 (4th Cir. 1996).            When jury instructions are challenged

on    appeal,    the     issue    “is    whether,         taken    as    a   whole,      the

instruction       fairly    states       the       controlling          law.”       United

States v. Cobb, 905 F.2d 784, 789 (4th Cir. 1990).                               Notably,

this court has held that a “district court is not required to

give defendant’s particular form of instruction, as long as the

instruction      the    court    gives   fairly      covers       a   theory     that    the

defense offers.”         United States v. Smith, 44 F.3d 1259, 1270-71

(4th Cir. 1995).

            To establish a violation of 18 U.S.C.A. § 924(c), the

Government must prove “that the [defendant’s] possession of a

                                             2
firearm       furthered,           advanced,       or     helped     forward        a     drug

trafficking crime.”             United States v. Lomax, 293 F.3d 701, 705

(4th Cir. 2002).             Factors that might lead a reasonable trier of

fact to conclude that the requisite nexus existed between the

firearm       and    the     drug    offense       include:       “‘the    type     of    drug

activity that is being conducted, accessibility of the firearm,

the type of weapon, . . . whether the gun is loaded, proximity

to drugs or drug profits, and the time and circumstances under

which    the    gun     is    found.’”         Id.       (quoting    United       States    v.

Ceballos-Torres, 218 F.3d 409, 414-15 (5th Cir. 2000)).                             To that

end, a firearm might further or advance a drug trafficking crime

as a defense or deterrent against someone trying to steal drugs

or drug profits.            Lomax, 293 F.3d at 705.

               With these standards in mind, we have reviewed the

record and conclude that the district court properly instructed

the    jury    that    if     it    believed       Clay’s    gun    was    accessible       or

visible during Clay’s drug transactions, then it could infer he

possessed       it    for     the     purpose      of     providing       defense       and/or

deterrence.           See    United    States       v.    Reid,     523   F.3d     310,    318

(4th Cir. 2008).             The district court amply allowed for Clay’s

theory of coincidence and/or mistake by instructing the jury

that if it found the presence of the gun to be coincidental or

unrelated to the alleged drug trafficking crime, it must acquit

him.     See United States v. Harris, 477 F.3d 241, 243-44 (5th

                                               3
Cir. 2007) (upholding nearly identical instruction).                    Thus, the

district   court   did   not    abuse       its   discretion    in     giving   the

contested jury instruction.

           Accordingly, we affirm the district court’s judgment.

We   dispense   with   oral    argument      because   the     facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                         AFFIRMED




                                        4
