                    Case: 12-10324         Date Filed: 10/17/2012   Page: 1 of 6

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10324
                                        Non-Argument Calendar
                                      ________________________

                         D.C. Docket No. 3:11-CR-00035-CAR-CHW-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                Plaintiff-Appellee,

                                                 versus

TRAVIS ALMOND,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Georgia
                                 ________________________

                                           (October 17, 2012)

Before MARTIN, FAY and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 12-10324     Date Filed: 10/17/2012   Page: 2 of 6

      Travis Almond appeals his conviction for carrying and possessing a firearm

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

(Count 2). Almond argues that the district court committed per se reversible error

by constructively amending Count 2 of the indictment. He asserts that the

indictment only charged him with one of the two ways of violating 18 U.S.C. §

924(c)(1)(A) and the court constructively amended the indictment by telling the

jury that he could be convicted for violating § 924(c)(1)(A) in either way.

      We review de novo whether jury instructions constructively amend an

indictment. See United States v. Sanders, 668 F.3d 1298, 1309 n.9 (11th Cir.

2012). A constructive amendment “occurs when the essential elements of the

offense contained in the indictment are altered to broaden the possible bases for

conviction beyond what is contained in the indictment.” United States v. Keller,

916 F.2d 628, 634 (11th Cir. 1990). “Customarily, a constructive amendment

occurs because the trial court instructs the jury on an expressly different crime

than the one alleged in the indictment.” United States v. Johnson, 713 F.2d 633,

644 n.12 (11th Cir. 1983).

      “A jury instruction that constructively amends a grand jury indictment . . .

violates a defendant’s constitutional right to be tried on only those charges

presented in a grand jury indictment and creates the possibility that the defendant

                                          2
               Case: 12-10324      Date Filed: 10/17/2012     Page: 3 of 6

may have been convicted on grounds not alleged in the indictment.” United States

v. Cancelliere, 69 F.3d 1116, 1121 (11th Cir. 1995). Therefore, the constructive

amendment of an indictment is per se reversible error. United States v. Williams,

527 F.3d 1235, 1246 (11th Cir. 2008); Cancelliere, 69 F.3d at 1121.

      Section 924(c) states, in relevant part, “any person who, during and in

relation to any . . . drug trafficking crime . . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm” shall be subject to enhanced

penalties enumerated in the statute. 18 U.S.C. § 924(c)(1)(A). Thus, the enhanced

penalties can be triggered in either one of two ways: (1) if the defendant carried or

used a firearm during and in relation to a drug trafficking crime or (2) if the

defendant possessed a firearm in furtherance of such a crime. United States v.

Haile, 685 F.3d 1211, 1217 (11th Cir. 2012).

      Count 2 of the indictment states that Almond “did carry and possess a

firearm in furtherance of[] a drug trafficking crime . . . in violation of Title 18,

United States Code, Section 924(c)(1).” The original jury instructions and the

supplemental jury instructions set out both ways in which the enhanced penalty can

be triggered. Almond argues that by instructing the jury on both of the ways to

trigger 18 U.S.C. § 924(c) the district court constructively amended the indictment

because the indictment only charged him with the possession “in furtherance of”

                                             3
               Case: 12-10324    Date Filed: 10/17/2012    Page: 4 of 6

provision of the statute.

      In addressing Almond’s argument we first examine the indictment. Count 2

contains the language “carry and possess.” We have held that when a statute

defines multiple ways an offense may be committed, all may be alleged in the

conjunctive and proof of any one of those acts may support a conviction. United

States v. Felts, 579 F.3d 1341, 1344 (2009). The language “carry and possess,”

accompanied by the reference to § 924(c)(1)(A), signaled the inclusion of both

bases for conviction (the “during and in relation to . . . uses or carries” prong and

the “in furtherance of . . . possesses” prong) in the indictment.

      Although the indictment omitted “in relation to” from the carrying “in

relation to” charge, it included “in furtherance of” from the second basis for

conviction under § 924(c)(1)(A) and the two phrases require that there be the same

type of connection between the firearm and the drug trafficking. For a firearm to

have been carried “in relation to” a drug trafficking offense it must have facilitated,

or have had the potential to facilitate, the drug trafficking crime. United States v.

Timmons, 283 F.3d 1246, 1251 (11th Cir. 2002). Similarly, for a firearm to be

possessed “in furtherance of” a drug trafficking crime it must have “helped,

furthered, promoted, or advanced the drug trafficking.” Id. at 1252. Thus, the two




                                           4
                 Case: 12-10324        Date Filed: 10/17/2012        Page: 5 of 6

phrases have essentially the same meaning1 and the indictment adequately

conveyed the charge of carrying a firearm in relation to a drug trafficking crime.

       Next, in examining the jury instructions, we note that the district court

correctly explained the two prongs of 18 U.S.C. § 924(c)(1)(A). The jury was

informed that “in relation to” intends that “[t]he firearm must have helped with

some important function or purpose of the crime.” The instructions also stated that

“in furtherance of” a drug trafficking crime “means that the firearm helped,

promoted, or advanced the crime in some way.” “[T]he substance of the

indictment”—that Almond carried or possessed his firearm in a manner that helped

his drug trafficking crime—remained intact despite the fact that the language in the

jury instruction did not exactly match that in the indictment. See United States v.

Moore, 525 F.3d 1033, 1046 (11th Cir. 2008). Therefore, the jury instructions do

not support Almond’s claim that the indictment was constructively amended.2

       1
         The carrying “in relation to” prong of § 924(c)(1)(A) also includes a temporal
requirement: the firearm must be carried “during and in relation to . . . a drug trafficking crime.”
Id. (emphasis added). Thus, if an individual carried or possessed a firearm in a manner that
helped his drug trafficking crime, he would be guilty under the “in furtherance of” prong, but
would not be guilty of the “in relation to” prong unless it is also shown that the firearm was
carried during the drug trafficking crime. However, Almond does not argue, and therefore we
need not decide whether omitting this temporal component from the “in relation to” prong
constructively amended his indictment.
       2
          Almond calls our attention to the verdict form, which described the charge as
“Possession of a Firearm during a Drug Trafficking Crime.” We agree that the verdict form does
not properly state the underlying offense. However, we assume that the jury followed the jury
instructions, United States v. Tobin, 676 F.3d 1264, 1297 n.20 (11th Cir. 2012), which

                                                  5
                Case: 12-10324       Date Filed: 10/17/2012       Page: 6 of 6




       AFFIRMED.




appropriately explained the charges in the indictment. Therefore, we do not view this verdict
form as grounds for finding that there was a constructive amendment of the indictment.

                                                6
