                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                          April 16, 2007

                                                                   Charles R. Fulbruge III
                                                                           Clerk
                                No. 05-30618
                              Summary Calendar


UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JAMES JOSEPH OWENS, JR.,

                                           Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                      USDC No. 2:03-CR-20018
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges,

PER CURIAM:*

     James Joseph Owens, Jr. pleaded guilty to conspiracy to

possess   with      intent      to   distribute       cocaine,       marijuana,

methamphetamine, and ecstacy, in violation of 18 U.S.C. § 846, for

which he was sentenced to the mandatory minimum 120-month term of

imprisonment,    and   to    “possession   of   a   firearm   during     and    in

relation to a drug trafficking crime,” in violation of 18 U.S.C.

§ 924(c)(1), for which he was sentenced to the mandatory 60-month

term of imprisonment.         Owens challenges the sufficiency of the


     *

 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opinion should not be published and is not precedent except under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.
                                     No. 05-30618
                                          -2-

factual basis to support his conviction for possessing a firearm in

furtherance of a drug trafficking crime.                    The Government concedes

that, to the extent the indictment charged Owens with possessing a

firearm      in    furtherance      of    a     drug     trafficking         offense,    the

stipulated        facts   and     Owens’s      admissions        do   not     support    his

conviction.

      “[Section]            924(c)            criminalizes             two       separate

offenses--(1) using or carrying a firearm during and in relation to

a   drug     trafficking     crime,       and     (2)     possessing     a     firearm    in

furtherance of a drug trafficking crime.”                   United States v. Combs,

369   F.3d    925,    931   (6th     Cir.     2004)      (emphasis      omitted).        The

indictment did not charge Owens with using or carrying a firearm.

Thus, we assume arguendo that the indictment charged Owens with

possessing a firearm in furtherance of a drug trafficking crime.

      The record as a whole does not show that Owens’s possession of

firearms      furthered,        advanced,         or    helped     forward      his     drug

trafficking activities.           See United States v. Ceballos-Torres, 218

F.3d 409, 410-11 (5th Cir. 2000).                      Because the conduct to which

Owens admitted does not constitute the crime of possessing a

firearm in furtherance of a drug trafficking offense and added 60

months to his sentence, the district court’s error in accepting

Owens’s plea of guilty to this offense was plain error which

affected      Owens’s     substantial         rights.        See      United    States    v.

Dominguez     Benitez,      542    U.S.     74,    83    (2004);      United    States    v.

Castro-Trevino, 464 F.3d 536, 544 (5th Cir. 2006).                           A guilty plea
                                No. 05-30618
                                     -3-

based on facts insufficient to support a conviction “‘colors the

fundamental fairness of the entire proceeding.’”            United States v.

Palmer, 456 F.3d 484, 491 (5th Cir. 2006) (quoting Kennedy v.

Maggio, 725 F.2d 269, 273 (5th Cir. 1984)).                 Accordingly, we

exercise our discretion to correct the error on appeal.

      We AFFIRM Owens’s conviction for conspiracy to possess with

intent to distribute controlled substances under 18 U.S.C. § 846

but   VACATE   his   conviction    for   possession    of    a   firearm   in

furtherance    of    a   drug   trafficking    crime   under     18   U.S.C.

§ 924(c)(1)(A).      We REMAND for further proceedings in accordance

with this opinion.

      Counsel’s outstanding motion to withdraw under Anders v.

California, 386 U.S. 738 (1967), is DENIED.

      CONVICTION AFFIRMED IN PART, VACATED AND REMANDED IN PART.
