                            UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53


           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                              Submitted May 31, 2006
                               Decided June 1, 2006

                                       Before

                    Hon. TERENCE T. EVANS, Circuit Judge

                    Hon. ANN CLAIRE WILLIAMS, Circuit Judge

                    Hon. DIANE S. SYKES, Circuit Judge

No. 05-3762

UNITED STATES OF AMERICA,                     Appeal from the United States District
    Plaintiff-Appellee,                       Court for the Central District of Illinois

      v.                                      No. 04-10075-001

MARLON BEARD,                                 Michael M. Mihm,
    Defendant-Appellant.                      Judge.


                                     ORDER

       Marlon Beard was charged with possessing at least 50 grams of crack with
intent to distribute, 21 U.S.C. § 841(a)(1), (b)(1)(A), and with possessing a gun in
furtherance of that offense, 18 U.S.C. § 924(c). He pleaded guilty to the drug
offense but elected to take the gun charge to a jury, which found him guilty. The
district court sentenced Beard to the mandatory minimum of 120 months on the
drug count and a mandatory, consecutive 60 months on the gun count. Beard filed
a notice of appeal, but his appointed lawyer now moves to withdraw because she
cannot discern a nonfrivolous basis for the appeal. See Anders v. California, 386
U.S. 738 (1967). We notified Beard that he could respond to counsel’s motion, see
Cir. R. 51(b), but he has not. Because counsel’s supporting brief is facially
No. 05-3762                                                                        Page 2

adequate, we review only the potential issues it identifies. See United States v.
Tabb, 125 F.3d 583, 584 (7th Cir. 1997).

       There is no indication that Beard is interested in having his guilty plea set
aside for the drug-possession count, so counsel appropriately avoids any discussion
about the adequacy of Beard’s plea colloquy or the voluntariness of his plea. See
United States v. Knox, 287 F.3d 667, 671 (7th Cir. 2002). Counsel instead focuses
on whether there is sufficient evidence to support Beard’s conviction under § 924(c),
and whether Jury Instruction 16 outlines appropriate factors for the jury to have
considered in determining whether the gun was possessed in furtherance of a drug
crime.

       When the sufficiency of the evidence is challenged, we ask whether any
rational trier of fact could convict on the evidence presented. United States v.
Carrillo, 435 F.3d 767, 775 (7th Cir. 2006). Here it would be frivolous for Beard to
argue that the government failed to adequately prove that he possessed the gun in
furtherance of his drug trafficking. Police officers found the loaded
handgun—which had an obliterated serial number—while searching Beard’s
apartment after the crack sale that led to his arrest. The gun was in easy reach on
a shelf in the bedroom closet, near a jacket with Beard’s prescription medication in
the pocket. And, most importantly, the gun was found a few feet from $8,000 worth
of crack that was packaged for sale. We have held that a fact-finder reasonably
may infer that a defendant’s possession of a gun was intended to “further” his drug
operation if he “strategically placed” the gun near a cache of drugs, making the gun
readily available to protect “himself, his drugs, and his ongoing drug trafficking
business.” United States v. Castillo, 406 F.3d 806, 815-16 (7th Cir. 2005); see also
United States v. Duran, 407 F.3d 828, 840-41 (7th Cir. 2005). We have also
recognized that illegally possessing a loaded gun and keeping it in close proximity
to drugs suggests that its possession was to facilitate drug activity. See Duran, 407
F.3d at 840-41; Castillo, 406 F.3d at 815-16. That is Beard’s case.

       Counsel also considers arguing that Jury Instruction 16 misstates the law on
the “in furtherance” element of § 924(c). Jury Instruction 16 states:

      Whether a firearm is possessed “in furtherance of a drug trafficking
      crime” is a question of fact to be decided by the jury. In answering this
      question, you may consider the following non-exclusive factors: 1) the
      type of drug activity that is being conducted; 2) the accessability of the
      firearm; 3) the type of weapon; 4) the status of the possession;
      5) whether the gun was loaded; 6) the proximity of the gun to the
      drugs; and 7) the time and circumstances under which the gun was
      found.
No. 05-3762                                                                     Page 3

      The natural meaning of “in furtherance of” is furthering, advancing or
      helping forward. If you find that the defendant possessed the .357
      caliber revolver, then you must decide whether the firearm helped
      further the possession and future distribution of the drugs found in the
      apartment.

We have recognized that all of the factors in the first paragraph are probative in
determining “whether a gun was, in fact, possessed ‘in furtherance’ of the drug
crime,” and as we recognized above, the jury could properly consider such factors to
convict Beard of violating § 924(c). Castillo, 406 F.3d at 815; see Duran, 407 F.3d at
840. Indeed, the Sixth and Tenth Circuits have adopted pattern jury instructions
similar to the instruction the district court provided Beard’s jury. See Pattern
Crim. Jury Instr. 6th Cir. § 12.03 (2005); Pattern Crim. Jury Instr. 10th Cir.
§ 2.45.1 (2006). Giving an explicit instruction for evaluating this term of art did not
prejudice Beard; rather, Jury Instruction 16 clarified the meaning of “in
furtherance” for the jury. See Castillo, 416 F.3d at 821. Any argument that the
district court erred in giving the instruction would be frivolous.

      Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.
