                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-4607



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellant,

           versus


LARRY ANTHONY CLYBURN, a/k/a Shoan Clyburn,

                                               Defendant - Appellee.



                             No. 05-4631



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


LARRY ANTHONY CLYBURN, a/k/a Shoan Clyburn,

                                              Defendant - Appellant.



Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-04-50)


Argued:   March 17, 2006                      Decided:   May 17, 2006
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Reversed and remanded in part; affirmed in part by unpublished
opinion. Judge Duncan wrote the opinion, in which Senior Judge
Hamilton joined.    Judge Gregory wrote a separate concurring
opinion.


ARGUED: John L. Brownlee, United States Attorney, Roanoke,
Virginia, for Appellant/Cross-Appellee.     Michael Allen Bragg,
Abingdon, Virginia for Appellee/Cross-Appellant. ON BRIEF: Jean B.
Hudson, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlottesville, Virginia, for Appellant/Cross-
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                                2
DUNCAN, Circuit Judge:

        The government appeals from the district court's grant of

Larry Clyburn's Motion for Judgment of Acquittal on Count Six of a

seven-count indictment: possessing a firearm in furtherance of a

drug trafficking crime in violation of 18 U.S.C. § 924(c)(1).

Clyburn cross-appeals from the district court's denial of his

Motion for Judgment of Acquittal on Count One of the indictment:

conspiracy to manufacture fifty grams or more of a mixture or

substance containing a detectable amount of methamphetamine in

violation of 21 U.S.C. § 841(a)(1). Because, based on the evidence

adduced at trial, a rational trier of fact could find the essential

elements of both crimes beyond a reasonable doubt, we reverse the

grant of judgment of acquittal as to Count Six of the indictment

and affirm the denial of judgment of acquittal as to Count One of

the indictment.



                                  I.

     On August 11, 2003, law enforcement officers executed a search

warrant on Clyburn's residence.   In addition to baggies containing

methamphetamine, the officers found multiple items associated with

the manufacture of methamphetamine, including Sudafed tablets,

plastic tubing, coffee filters with red residue, flasks and a Pyrex

dish.    The greatest concentration of these items was found in the

master bedroom.


                                  3
     The officers also found a Mossberg 20-gauge shotgun behind the

door of the master bedroom.         The shotgun was loaded with six shells

containing "seven and a half shot."1

     The officers arrested Clyburn, who agreed to talk to DEA

special agent Brian Snedeker.            Clyburn stated that he had learned

to manufacture methamphetamine from an individual named George

Harper.         Clyburn    also        stated   that   he    had   manufactured

methamphetamine, employing the so-called "red phosphorous" method,

every one to two weeks for six months, using 200 thirty milligram

tablets,   or     six   grams,    of    pseudoephedrine     on   each   occasion.

According to Snedeker's testimony at trial, the red phosphorous

method yields 0.59 to 0.78 grams of methamphetamine from every gram

of pseudoephedrine.

     On    June    2,   2004,    law     enforcement   officers    returned   to

Clyburn's residence, where Snedeker observed empty cold medicine

packs on top of trash cans located outside the back door.                Clyburn

admitted to Snedeker that he had manufactured methamphetamine five

or six times since his arrest in August 2003, including once on May

30, 2004, at the residence of James and Joy Lovell.                 Clyburn was

arrested again.



     1
      Although shotguns, like rifles and handguns, can fire a
single projectile, shotgun ammunition typically consists of a shell
containing a load of small pellets. These pellets, which become
projectiles when the shotgun is fired, are available in several
sizes.   "Seven and a half shot" refers to a pellet size used
primarily for hunting small birds and rabbits.

                                           4
      That same day, law enforcement officers executed a search

warrant on the Lovells' residence.           The officers found multiple

items associated with the manufacture and use of methamphetamine,

including filters, plastic tubing, matchbooks with the striker

plates removed and glass pipes used for smoking methamphetamine.

      The grand jury returned a seven-count indictment.              Count One

charged Clyburn with conspiring, from on or about February 11,

2003, until on or about May 30, 2004, with the Lovells and others

known and unknown to the grand jury to manufacture fifty grams or

more of a mixture or substance containing a detectable amount of

methamphetamine in violation of 21 U.S.C. 841(a)(1).                 Count Six

charged him with on or about August 11, 2003, knowingly using and

carrying a firearm during and in relation to, and possessing a

firearm in furtherance of a drug trafficking crime in violation of

18 U.S.C. 924(c)(1).

      Clyburn   received   a   jury   trial.        At   the    close   of   the

government's case, he moved for acquittal and directed verdict as

to   Count   Six.   The    district       court   took   this   motion   under

advisement.     At the close of the evidence, Clyburn moved for

judgment of acquittal as to Count One.            The district court denied

this motion.    The jury returned a verdict of guilty on all seven

counts of the indictment.

      Clyburn   subsequently    moved       for    judgment     of   acquittal

notwithstanding the verdict for Counts One and Six, claiming that


                                      5
the evidence was insufficient to sustain the convictions.                       The

district court denied the motion as to Count One and granted the

motion as to Count Six.



                                        II.

        Where, as here, a motion for judgment of acquittal is based

upon insufficiency of the evidence, we review the district court's

decision de novo regardless of whether the district court granted

or denied the motion.           See United States v. Lentz, 383 F.3d 191,

199 (4th Cir. 2004) (review of grant of judgment of acquittal based

upon insufficiency of the evidence), cert. denied, 125 S. Ct. 1828

(2005); United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.

2001)    (review   of   denial     of   judgment    of    acquittal   based    upon

insufficiency of the evidence).               In doing so, if, viewing the

evidence    in   the    light    most   favorable    to    the   government,    any

rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt, we must sustain the fact finder's

verdict.    See Lentz, 383 F.3d at 199; United States v. Lomax, 293

F.3d 701, 705 (4th Cir. 2002).




                                         6
                                  A.

     The government claims that, because it presented sufficient

evidence in its case-in-chief2 from which the jury could have found

beyond a reasonable doubt that Clyburn possessed a firearm in

furtherance of a drug trafficking crime, the district court erred

in granting Clyburn's motion as to Count Six.          We agree.

     The elements of a § 924(c) violation are the commission of a

crime of violence or a drug trafficking crime and either (1) using

or carrying a firearm during and in relation to the crime or (2)

possessing a firearm in furtherance of the crime.              18 U.S.C.

§ 924(c).   The jury found Clyburn guilty of Counts One through Five

of the indictment, each of which constitutes a drug trafficking

crime    under   §   924(c).3   Clyburn   does   not    challenge   those


     2
      Where, as here, the district court reserves its decision on
a motion of judgment of acquittal made at the close of the
government's evidence, it "must decide the motion on the basis of
the evidence at the time the ruling was reserved." Fed. R. Crim. P.
29(b). An appellate court must base its review of the district
court's decision on the same evidence.       See United States v.
Brodie, 403 F.3d 123, 133 (3d Cir. 2005); Fed. R. Crim. P. 29
advisory committee's note (1994 Amendments).
     3
      As used in § 924(c), "the term 'drug trafficking crime' means
any felony punishable under the Controlled Substances Act (21
U.S.C. 801 et seq.), the Controlled Substances Import and Export
Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement
Act (46 U.S.C. App. 1901 et seq.)." 18 U.S.C. § 924(c)(2).
     Clyburn does not dispute that each of the following counts of
the indictment, being a felony punishable under the Controlled
Substances Act, constitutes a drug trafficking crime: (1)
conspiring to manufacture fifty grams or more of methamphetamine in
violation of 21 U.S.C. 841(a)(1); (2) manufacturing fifty grams or
more of methamphetamine in violation of 21 U.S.C. § 841(a)(1); (3)
possessing pseudoephedrine with the intent to manufacture

                                   7
convictions, and the government does not argue that he used or

carried the firearm during those crimes.       Thus, the only question

is whether any rational trier of fact could find that Clyburn

possessed the shotgun in furtherance of one or more of the drug

trafficking crimes.

     The mere presence of a firearm at the scene of a drug

trafficking offense is insufficient to establish this element of a

§ 924(c) violation.      United States v. Ceballos-Torres, 218 F.3d

409, 414 (5th Cir. 2000).       Rather, the government must present

evidence indicating that the possession "furthered, advanced or

helped forward a drug trafficking crime."       Lomax, 293 F.3d at 705.

When considering the evidence, however, the fact finder may take

into account any of the myriad ways that a firearm might further or

advance   the   drug   trafficking   crime,   including,    for   example,

providing a defense against the theft of drugs, or reducing the

probability that such a theft might be attempted.          Id.    Moreover,

this court has recognized a nonexclusive list of factors that might

lead a fact finder to conclude that a firearm was possessed in

furtherance of a drug trafficking crime:

     "the type of drug activity that is being conducted,
     accessibility of the firearm, the type of weapon, whether


methamphetamine in violation of 21 U.S.C. §§ 841(c)(1) and (2); (4)
maintaining   a   place   for   the   purpose    of  manufacturing
methamphetamine in violation of 21 U.S.C. § 856(a)(1); and (5)
knowingly and intentionally creating a substantial risk of harm to
human life while manufacturing methamphetamine in violation of 21
U.S.C. § 858.

                                     8
      the weapon is stolen, the status of the possession
      (legitimate or illegal), whether the gun is loaded,
      proximity to drugs or drug profits, and the time and
      circumstances under which the gun is found."

Id. (quoting Ceballos-Torres, 218 F.3d at 414-15).

      Because a rational trier of fact could find that Clyburn

possessed the shotgun in furtherance of a drug trafficking crime,

we must sustain the jury's verdict and reverse the district court's

grant of judgment of acquittal. Law enforcement officers found the

loaded    shotgun   in     a     home   used   for    the   manufacture   of

methamphetamine.        The shotgun was located in close proximity to

both methamphetamine and many of the materials and equipment used

for its manufacture.       In fact, the shotgun was in the same room as

the   bulk   of   the    items    associated   with   the   manufacture   of

methamphetamine.    Moreover, the jury could infer that the shotgun

was readily accessible to anyone who knew of its location behind

the bedroom door. Finally, Clyburn's possession of the shotgun was

illegal because he was an unlawful user of a controlled substance.4

See 18 U.S.C. § 922(g)(3).        A rational trier of fact could readily

find, for instance, that Clyburn possessed the shotgun to protect

the drugs that he had manufactured, as well as the place and the

means to perform the manufacturing operation.




      4
      Count Seven of the indictment charged Clyburn with, and the
jury found him guilty of, knowingly possessing a firearm as an
unlawful user of a controlled substance in violation of 18 U.S.C.
§ 922(g)(3).

                                        9
     Clyburn argues that the factors cited in Lomax do not support

the jury's finding.      He notes that neither the evidence adduced at

trial    nor    common    knowledge    suggests   that   methamphetamine

manufacturers making the drug for their own use, rather than

distribution, arm themselves for protection.         He admits that the

shotgun was accessible,5 loaded, and in the same room as the

methamphetamine, but points out that it is not the type of weapon

normally associated with drug trafficking, that it was loaded with

"bird-shot,"6    and     that   the   methamphetamine    was   in   closed

containers.     The weapon was not stolen, and Clyburn contends that

the fact that his possession was illegal because he was a drug user

does not aid the analysis of whether the firearm was used in


     5
      Clyburn subsequently argues that the fact that he made no
effort to retrieve the shotgun when law enforcement officers
entered his home is proof that it was not accessible. Clyburn's
inaction does not prove inaccessibility.          Trial testimony
established that the law enforcement officers announced their
presence before entering the home and finding Clyburn in the bed
with a female companion.       In light of those circumstances,
scenarios other than inaccessibility exist to explain Clyburn's
failure to retrieve the shotgun, including the failure to notice
the officers' presence in time and the decision not to confront law
enforcement officers with a loaded firearm.
     6
      The shells in the shotgun contained seven and a half shot,
ammunition used primarily for bird and rabbit hunting. However,
the shotgun was not configured for hunting. Virginia law requires
that a shotgun, when being used for hunting, contain a plug, a
device designed to limit its capacity to a total of three shells.
Va. Code Ann. § 29.1-519(A)(2). Clyburn's shotgun did not have a
plug and was loaded with six shells. Although Virginia law does
not require that a plug limiting the shotgun's capacity to three
shells be installed unless the weapon is being used for hunting,
the jury was entitled to consider the shotgun's configuration when
considering the purpose of Clyburn's possession.

                                      10
furtherance of a drug trafficking crime.                 Finally, Clyburn notes

that the shotgun was found during a raid on his home in a rural

part of southwest Virginia, an area where households typically

contain firearms, at a time when no drug manufacturing or use was

taking place.

       The facts cited by Clyburn do not compel the conclusion that

he possessed the shotgun for purposes other than furthering his

drug    trafficking      crimes,   even    if    they    could       support    such    a

conclusion.      Although a 20-gauge shotgun may not be the firearm of

choice for individuals engaged in drug trafficking, a jury could

conclude that a loaded shotgun, even one loaded with bird shot,

would serve to protect Clyburn's operation. It could also conclude

that Clyburn would be more likely to risk conviction for illegal

possession of a firearm--a conviction he ultimately received--to

protect his manufacturing operation and the product thereof than to

engage    in   recreational     hunting.         Finally,      the    fact    that   the

methamphetamine was in closed containers with no drug manufacturing

or use taking place when the law enforcement officers executed the

search warrant does not mean that the shotgun was not being used to

protect    the    methamphetamine.             "'[I]f    the    evidence       supports

different,     reasonable     interpretations,          the    jury   decides     which

interpretation to believe.'"              Lentz, 383 F.3d at 199 (quoting

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997)).                           In

the    present   case,    the   jury   decided      to    believe      that    Clyburn


                                          11
possessed the shotgun in furtherance of a drug trafficking crime,

and this was a reasonable interpretation of the evidence.



                                       B.

     On cross-appeal, Clyburn claims that the district court erred

in denying his motion as to Count One because the government

presented insufficient evidence from which the jury could have

found   beyond   a   reasonable     doubt     that   Clyburn   engaged   in   a

conspiracy to manufacture fifty grams or more of a mixture or

substance   containing    a     detectable    amount    of   methamphetamine.

Clyburn concedes that the government carried its burden of proof

with respect to the existence of a conspiracy between him and the

Lovells. At oral argument, Clyburn's counsel further conceded that

Clyburn had manufactured more than fifty grams of methamphetamine.

Clyburn argues only that the government failed to adduce sufficient

evidence to prove that the conspiracy's purpose was to manufacture

at least fifty grams of methamphetamine.             We disagree.

     The relevant evidence is undisputed. Clyburn admitted that he

had been taught to manufacture methamphetamine by an individual

named   George   Harper   and    had   been   manufacturing    the   drug   for

approximately six months before the search warrant was executed at

his home in August 2003.         He also admitted that he had obtained

additional information about manufacturing methamphetamine from his

ex-girlfriend and her acquaintances.            Finally, he admitted that,


                                       12
after his arrest in August 2003, he had told the Lovells what he

needed to manufacture methamphetamine, that they had provided the

materials, and that he had manufactured methamphetamine using the

materials provided by them on multiple occasions.

     Based   on   this   evidence,    the    jury    reasonably   could   have

concluded that all of the individuals who knowingly assisted

Clyburn, by providing either knowledge or materials, engaged in a

single   conspiracy    with   the   common    objective    of   manufacturing

methamphetamine.      A conspiracy can exist without every member of

the conspiracy knowing its full scope or all of the other members

and without every member participating in all of its activities or

for the entire length of its existence.             United States v. Burgos,

94 F.3d 849, 858 (4th Cir. 1996) (en banc).             Therefore, the jury

reasonably could have concluded that the conspiracy to manufacture

methamphetamine began when Harper taught Clyburn the manufacturing

method and continued through Clyburn's interactions with his ex-

girlfriend, her acquaintances and the Lovells, with Clyburn acting

as the linchpin for the conspiracy.          The result of that conspiracy

was the manufacture of more than fifty grams of methamphetamine.7




     7
      Although Clyburn did not concede at trial that he had
manufactured more than fifty grams of methamphetamine, the jury
reasonably could have reached that conclusion based on Snedeker's
testimony as to the frequency with which Clyburn engaged in the
manufacturing process, the amount of pseudoephedrine he used each
time and the yield of the manufacturing method.

                                     13
The jury reasonably could have inferred that the object of the

conspiracy was to manufacture that amount of methamphetamine.8



                               III.

     For the foregoing reasons, we reverse the district court's

grant of Clyburn's motion for judgment of acquittal notwithstanding

the verdict as to Count Six of the indictment and remand to the

district court to reinstate the jury's verdict of guilty.        We

affirm the district court's denial of Clyburn's motion for judgment

of acquittal notwithstanding the verdict as to Count One of the

indictment.



                                      REVERSED AND REMANDED IN PART;
                                                    AFFIRMED IN PART




     8
      This conclusion does not, as suggested in the concurring
opinion, constitute impermissible speculation. It simply points,
in response to a challenge to the sufficiency of the evidence, to
evidence adduced at trial from which the jury could have concluded
that Clyburn and those individuals who provided him with knowledge
and materials for his manufacturing operation engaged in a single
conspiracy, the intent of which was the manufacture of
methamphetamine for the use of the individuals involved.

                                14
GREGORY, Circuit Judge, concurring:

       I     write    separately    to    express    my       reasons    for   affirming

Clyburn’s conviction for conspiracy to manufacture fifty grams or

more of a mixture containing a detectable amount of methamphetamine

under Count One.          Clyburn concedes that he engaged in a conspiracy

with the Lovells to manufacture methamphetamine on May 30, 2004,

and only challenges the amount attributable to that conspiracy.

According to Clyburn’s trial testimony, the Lovells asked him to

make       methamphetamine    for    a    party    they    were      hosting   at   their

residence.        J.A. 191-92.      The Lovells supplied Clyburn with two

boxes of matches and four boxes of thirty-milligram Sudafed pills.

Clyburn cooked and gassed the pseudoephedrine contained in the

pills into a liquid form at his own residence.                            J.A. 213-14.

Clyburn admitted that he then brought over a bottle filled with

approximately 500 grams of “water which contained a detectable

amount       of   methamphetamine.”         J.A.    192,      203,    213-14.*      Thus,

Clyburn’s direct testimony supported the jury’s finding that he

manufactured         at   least   fifty    grams    of    a    mixture    containing   a

detectable amount of methamphetamine as part of a conspiracy with

the Lovells.         I would therefore resolve the merits of this claim on

that testimony alone.



       *
      Although Clyburn claimed that the methamphetamine contained
in the water was not usable, he admitted he frequently injected
methamphetamine into his arm or leg with a syringe filled with
water and methamphetamine. J.A. 172, 203-04.

                                           15
      The    majority    proceeds,       however,   to     delve    into   other

conspiracies that may have occurred during the six-month period in

which Clyburn manufactured methamphetamine.                 In so doing, the

majority impermissibly veers toward speculation by attributing the

total amount of methamphetamine (approximately fifty to ninety

grams) Clyburn had manufactured during this six-month period to an

overarching conspiracy between Clyburn, his various girlfriends,

his   girlfriends’      unidentified     acquaintances,      Harper,    and    the

Lovells.    There was no evidence to support the theory that Clyburn

was the “lynchpin” of these numerous, smaller conspiracies, which

began and ended at various times during the six-month period.                  In

effect,     the   majority    simply   collapses    distinct       instances    of

Clyburn’s methamphetamine production with unrelated individuals

into a single conspiracy between all of these individuals based

solely on the fact that they occurred during the six-month period.

Cf. United States v. Barsanti, 943 F.2d 428, 439 (4th Cir. 1991)

(“A single conspiracy exists where there is one overall agreement,

. . . or one general business venture. . . .               Whether there is a

single conspiracy depends upon the overlap of [the] main actors,

methods     and   goals.”    (internal    quotation      marks   and   citations

omitted)).

      I otherwise concur in the opinion and the judgment.




                                       16
