                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4437



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KEMUEL CORNELIUS MINGO,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (CR-03-14)


Submitted:   June 21, 2007                 Decided:   August 13, 2007


Before TRAXLER, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eric A. Bach, Charlotte, North Carolina, for Appellant. Gretchen
C. F. Shappert, United States Attorney, Robert J. Gleason,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Kemuel Cornelius Mingo appeals his convictions on felon-in-

possession, drug possession, and drug trafficking charges. For the

reasons set forth below, we affirm the convictions.



                                I.

     On January 28, 2003, a Charlotte, North Carolina, grand jury

returned a three-count indictment against Mingo.    Counts One and

Two charged him with possession of a firearm by a convicted felon,

in violation of 18 U.S.C. § 922(g)(1) (2000), and possession of

cocaine base, in violation of 21 U.S.C. § 841 (2000).    Count Three

stated that “Mingo during and in relation to a drug trafficking

crime . . . did, knowingly, willfully and unlawfully use and carry

and in furtherance of such drug trafficking crime, did possess said

firearm” in violation of 18 U.S.C. § 924(c)(1) (2000).    J.A. 15.

     Count Three did not precisely track the language of the

statute cited, which provides in relevant part: “[A]ny person who,

during and in relation to any crime of violence or drug trafficking

crime . . . , uses or carries a firearm, or who, in furtherance of

any such crime, possesses a fireman, shall . . . be sentenced to a

term of imprisonment of not less than 5 years . . . .”    18 U.S.C.

§   924(c)(1)(A)(I).     Specifically,   the   statute   is   worded

disjunctively (any person who uses or carries, or possesses),




                               -2-
whereas the indictment charged Mingo conjunctively (Mingo did use

and carry and possess).

        At trial, the government’s evidence showed that on October 24,

2002, summoned by an informant, Mingo arrived at a Charlotte motel

room to conduct a drug deal with an undercover police officer.

When the police officers hiding in the bathroom emerged with their

guns drawn, Mingo’s initial reaction was to reach for a gun

concealed in the back of his waistband.                 Abandoning that effort

without touching or drawing the gun, Mingo reached for the door

behind him.        He was unable to leave the room quickly, however,

because he had locked the door from the inside when he entered.

The police apprehended Mingo and, in a search incident to his

arrest, recovered from his person both the gun and a sandwich bag

containing twelve individually packaged rocks of crack cocaine.

     At     the   conclusion     of   the     evidence,    the    district   court

instructed the jury.       As a part of its instructions on Count One

(felon-in-possession), the court explained that the parties had

stipulated that Mingo is a convicted felon.                       The court then

instructed the jury on constructive possession by defining the term

as well as the term “actual possession,” and by stating, among

other    things,    that   the   jury   “may     find     that    the   element   of

possession as that term is used in these instructions is present if

you find beyond a reasonable doubt the defendant had actual or

constructive possession” of the gun.             J.A. 248.       The court did not


                                        -3-
clarify whether the constructive possession instruction for Count

One applied to Count Three.

     As for Count Three, the court instructed the jury:

          [T]he government must prove as to each count the
     following essential elements beyond a reasonable doubt.
     First, that the defendant committed a drug trafficking
     crime for which he may be prosecuted in a court of the
     United States.     That is possession with intent to
     distribute cocaine base. Second, that the defendant used
     and carried a firearm during and in relation to the
     commission of the drug trafficking crime or possessed the
     firearm in furtherance of the drug trafficking crime.
     And third, that the defendant did so knowingly.
          Now, I want to define the terms on that a little bit
     further so if you’ll bear with me. He’s been charged
     with using and carrying a firearm during and in relation
     to a drug trafficking crime. To sustain a conviction
     based on use, the evidence must show beyond a reasonable
     doubt active employment of a firearm. The government may
     alternatively produce evidence that the firearm was
     carried during or in relation to a drug trafficking
     crime, but must prove, of course beyond a reasonable
     doubt that the firearm was actively carried as charged.
     Alternatively, the government may produce evidence beyond
     a reasonable doubt that the defendant knowingly possessed
     a firearm in furtherance of the drug trafficking crime.
     This requires the government to present evidence
     indicating that the possession of a firearm furthered or
     advanced or helped forward a drug trafficking crime.

J.A. 251-52 (emphases added).   Thus, while the indictment charged

Mingo in Count Three conjunctively (Mingo did use and carry and

possess), the district court instructed the jury on Count Three

disjunctively (the evidence must show that Mingo used or carried or

possessed) in accordance with the statute.      The verdict sheet

presented to the jury borrowed the language of the indictment with

regard to Count Three: “[Defendant] did . . . use and carry a



                                -4-
firearm and in furtherance of such drug trafficking crime, did

possess said firearm” in violation of § 924(c).         J.A. 279.

       The jury returned a verdict of guilty on all three counts.

Mingo appeals, contending that the district court erred in (1) not

limiting its instruction on constructive possession to Count One;

(2) constructively amending the indictment when instructing the

jury on Count Three; and (3) not offering the jury alternative

verdict forms for Count Three.



                                     II.

       Because Mingo failed to object to the jury instructions given

or the verdict form provided by the district court at the time of

trial, we review for plain error.          See Fed. R. Crim. P. 52(b);

United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998).

Mingo must show that an error occurred, the error was plain, and

the error affected his substantial rights.        Hastings, 134 F.3d at

239; see also id. at 240 (explaining that, on plain error review,

the defendant bears the burden of persuasion).         Even if Mingo can

make   this   showing,   we   will   not   exercise   our   discretion   in

correcting the error “unless the error ‘seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.’”

Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

       Constructive amendments of a federal indictment, however, are

error per se.     Therefore, should we find error with respect to


                                     -5-
Mingo’s second claim, we will reverse notwithstanding Mingo’s

failure to object at trial.   See United States v. Floresca, 38 F.3d

706, 714 (4th Cir. 1994) (en banc).    We consider the three errors

Mingo alleges in turn.



                                 A.

     Mingo first contends that the district court should have

clarified for the jury that the constructive possession instruction

for the 922(g) offense (felon-in-possession) did not apply to the

924(c) offense (using or carrying a firearm during and in relation

to a drug trafficking crime, or possessing a firearm in furtherance

of such crime).    The government responds that the theory of

constructive possession is equally applicable to both offenses,

that there is no reason to believe the jury was confused and needed

a limiting instruction, and that there was no error because the

evidence at trial was of actual possession, not constructive

possession.

     Under the theory of constructive possession, evidence may

establish “such a nexus or relationship between the defendant and

[contraband] that it is reasonable to treat the extent of the

defendant’s dominion and control as if it were actual possession.”

United States v. Smith, 407 F.2d 35, 37 (4th Cir. 1969) (citation

and quotation marks omitted).    We have not decided in a published




                                 -6-
opinion whether a constructive possession instruction may be given

on a 924(c) charge.1

     We do not reach the question because, in determining the

adequacy of jury instructions, we review them “taken as a whole.”

Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994); accord United

States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995) (“This court

reviews jury instructions in their entirety and as part of the



     1
      Our unpublished opinions have countenanced the use of the
constructive possession theory in order to establish the § 924(c)
offense of possessing a firearm in furtherance of a drug
trafficking crime. See, e.g., United States v. Griffin, 175 Fed.
App’x 627, 628, 630 (4th Cir. 2006); United States v. Milbourne,
129 Fed. App’x 861, 867 n.7 (4th Cir. 2005).      Additionally, in
United States v. Kemper, No. 89-5725, 925 F.2d 1458 (Table), 1991
WL 19988, *2 (Feb. 22, 1991), we did not discuss constructive
possession or jury instructions, but we noted that “[p]ossession,
constructive or actual, is necessarily included in a finding that
a defendant used or carried a firearm in relation to his drug
trade” in violation of § 924(c).
     At least one circuit has determined that a constructive
possession instruction should not be given on a 924(c) charge of
using or carrying a firearm during and in relation to a drug
trafficking crime. See United States v. Johnson, 216 F.3d 1162,
1164, 1167 (D.C. Cir. 2000); United States v. Green, 254 F.3d 167,
169, 172 (D.C. Cir. 2001).
     Several of our sister circuits have held that possession of a
firearm in furtherance of a drug trafficking crime under § 924(c)
may be shown through either constructive or actual possession. See
United States v. Booker, 436 F.3d 238, 241 (D.C. Cir. 2006)
(holding that “possession” for purposes of 924(c) may be either
actual or constructive); United States v. Maldonado-Garcia, 446
F.3d 227, 231 (1st Cir. 2006) (holding that a § 924(c) possession
charge encompasses both actual and constructive possession); United
States v. Lott, 310 F.3d 1231, 1247 (10th Cir. 2002) (holding that
possession under § 924(c) can be shown through either constructive
or actual possession); United States v. Mackey, 265 F.3d 457, 460
(6th Cir. 2001) (allowing defendant to concede constructive
possession of a weapon under § 924(c)).


                               -7-
whole trial.”).    The jury was instructed on actual possession,

defined as physical control over property, see United States v.

Moye, 454 F.3d 390, 395 (4th Cir. 2006), as well as constructive

possession.    The evidence at trial was of actual possession, not

constructive possession.    The jury heard evidence that a gun was

lodged in Mingo’s waistband, where he reached for it, and that the

police later found the gun on Mingo’s person and recovered it.

Thus, to the extent that the jury found Mingo guilty under § 924(c)

because he “possessed” a gun, there is little doubt that the jury

considered him to have “actually” possessed, or had direct physical

control over, the gun. Regardless of whether the district court’s

constructive   possession   instruction   for   the   922(g)   offense

impermissibly infected the jury’s consideration of the 924(c)

offense, there is no error where the evidence conformed to an

instruction on actual possession that the jury also received.

Mingo’s claim fails.



                                 B.

     Next, Mingo observes that Count Three of the indictment

contained two § 924(c) offenses in a single count, omitted the “or

who” language found in the statute, and used the language “uses and

carries” instead of “uses or carries” as stated in the statute.

Contrary to the indictment, Mingo explains, the district court

instructed the jury that it could convict Mingo based on use of a


                                -8-
firearm during and in relation to a drug crime, or alternatively,

carrying a firearm during and in relation to a drug crime, or

alternatively, possessing a firearm in furtherance of a drug crime.

The   district     court’s   modifications,     Mingo     argues,    constitute

constructive amendment of the indictment.



                                      1.

      We   begin   with    Mingo’s   baseline    assertion    that    §   924(c)

criminalizes two separate offenses: (1) using or carrying a firearm

during and in relation to a drug trafficking crime (the “use or

carry” offense) and (2) possessing a firearm in furtherance of a

drug trafficking crime (the “possession” offense). We have not yet

decided,   as    have   other   courts,     whether   §   924(c)    defines   two

distinct offenses.2       See, e.g., United States v. Savoires, 430 F.3d

376 (6th Cir. 2005); United States v. Combs, 369 F.3d 925 (6th Cir.

2004); United States v. Pleasant, 125 F. Supp. 2d 173, 176 (E. D.

Va. 2000) (“Given their plain meaning, the words of § 924(c)

delineate two quite different, albeit related, proscriptions.”).

      Assuming, without deciding, that the statute criminalizes two

distinct offenses, the indictment is duplicitous in that it joins



      2
      We have merely observed that “the first paragraph [of §
924(c)(1)(A)] contains the elements of the crime——using or carrying
a firearm in relation to or possessing a firearm in furtherance of
drug trafficking,” without noting whether the paragraph lists the
elements of two distinct crimes. United States v. Harris, 243 F.3d
806, 810 (4th Cir. 2001).

                                      -9-
together, with the word “and,” the use or carry offense and the

separate possession offense.3   See United v. Hawkes, 753 F.2d 355,

357 (4th Cir. 1985) (defining duplicity as “the joining in a single

count of two or more distinct and separate offenses”).       “As a

general rule, however, when a jury returns a guilty verdict on an

indictment charging several acts in the conjunctive . . . the

verdict stands if the evidence is sufficient with respect to any

one of the acts charged.”     Id. (quoting Turner v. United States,

396 U.S. 398, 420 (1970)); accord Griffin v. United States, 502

U.S. 46, 56-57 (1991).      In Turner, for example, the indictment

charged the defendant with purchasing, dispensing, and distributing

heroin without revenue stamps attached when the statute at issue

made it unlawful to commit any one of those acts.     Applying the

rule stated above, the Supreme Court held that because the evidence

proved that Turner was distributing heroin without revenue stamps

attached, the “status of the case with respect to the other

allegations is irrelevant to the validity of Turner’s conviction.”

Turner, 396 U.S. at 420.

     Here, the evidence was plainly sufficient to find that Mingo

committed each of the acts charged in the indictment. The evidence

was sufficient to find that Mingo “carried” the gun during his drug

trafficking crime where, under § 924(c), “to carry” means that the


     3
      We note that Mingo does not formally challenge his indictment
as duplicitous, although he invokes the concept in making his
argument regarding constructive amendment of the indictment.

                                -10-
firearm was on the defendant’s person or knowingly possessed and

conveyed in a vehicle.      See Muscarello v. United States, 524 U.S.

125, 126-27 (1998). Likewise, given the government’s evidence that

drug dealers carry guns for protection and that Mingo instinctively

reached for his gun when confronted by the police, the jury could

easily conclude that Mingo “possessed” the gun in furtherance of

his drug trafficking crime.      See United States v. Lomax, 293 F.3d

701, 705 (4th Cir. 2002) (requiring the government to establish

that “possession of a firearm furthered, advanced, or helped

forward a drug trafficking crime” with evidence, for example, that

the firearm provided the dealer with defense, protection, or a

means of intimidating others); see also id. at 706 (“[A] fact

finder is certainly entitled to come to the common-sense conclusion

that when someone has both drugs and a firearm on their person, the

gun is present to further drug trafficking.”).                     Finally, the

evidence was sufficient to find that Mingo “used” the gun.                    “Use”

under   §   924(c)   requires   “active       employment,”     which    includes

“brandishing,     displaying,   bartering,         striking   with,    and,    most

obviously, firing or attempting to fire a firearm.”                    Bailey v.

United States, 516 U.S. 137, 148 (1995) (emphasis added).                       At

trial, two police officers testified that they saw the gun in

Mingo’s waistband when he reached behind his back for the gun.

Because,    as   Bailey   explains,    a     gun   is   actively   employed      if




                                      -11-
displayed or “disclosed . . . by the offender,” Mingo, however

briefly, “used” the gun for the purposes of § 924(c).              Id. at 149.

     Thus, notwithstanding any duplicity in the indictment or the

district court’s charging of the jury in the disjunctive, the

verdict should stand.      Accord United States v. Dickey, 102 F.3d

157, 164 n.8 (5th Cir. 1996) (holding that where indictment charged

defendant with carrying and using a firearm in violation of §

924(c) but statute and jury instructions spoke of carrying or using

a   firearm,   the    “discrepancy     was       not   improper”   because   “a

disjunctive    statute   may   be    pleaded      conjunctively    and   proved

disjunctively” (citation omitted)).



                                      2.

     This conclusion would normally end our inquiry, but Mingo has

not mounted a duplicity challenge to the indictment or a challenge

to the sufficiency of the evidence.              Rather, he asserts that the

district   court      constructively        amended     the   indictment     by

substituting    the    words   “or”        and    “alternatively”    for     the

indictment’s use of the word “and.”              Turner and Griffin, the two

cases cited above that would ordinarily bar Mingo’s claim, did not

involve an allegation of constructive amendment.

     “A constructive amendment to an indictment occurs when either

the government (usually during its presentation of evidence and/or

its argument), the court (usually through its instructions to the


                                     -12-
jury), or both, broadens the possible bases for conviction beyond

those presented by the grand jury.”           Floresca, 38 F.3d at 710.             We

have referred to constructive amendments of a federal indictment as

fatal variances because “the indictment is altered to change the

elements    of    the   offense    charged,   such   that    the       defendant    is

actually convicted of a crime other than that charged in the

indictment.” United States v. Randall, 171 F.3d 195, 203 (4th Cir.

1999).     Constructive amendments are error per se and, given the

Fifth Amendment right to be indicted by a grand jury, “must be

corrected    on    appeal   even    when   not   preserved        by    objection.”

Floresca, 38 F.3d at 714.

     When considering a constructive amendment claim, “it is the

broadening [of the bases for a defendant’s conviction] that is

important——nothing more.”          Floresca, 38 F.3d at 711.           As explained

in Floresca, “it matters not,” when a constructive amendment has

occurred, “whether the factfinder could have concluded” that the

defendant was guilty even if the amendment had not occurred.                       Id.

The key inquiry is whether the defendant has been tried on charges

other than those made in the indictment against him.

     We find that Mingo was not tried in this manner.                  The district

court    certainly      modified   the   language    of     the    indictment       by

instructing the jury to convict if it found that Mingo used or

carried or possessed a firearm, when the indictment charged Mingo

with using and carrying and possessing a firearm.                  Thus, it would


                                      -13-
seem that the bases for Mingo’s conviction were broadened: the

indictment required the jury to find that Mingo committed all three

acts before issuing a guilty verdict, whereas the jury instructions

required the jury to find that Mingo committed any one of the three

acts before issuing a guilty verdict.                But dwelling on this point

would be misguided, for every charge the jury considered (using,

carrying, possessing) was made in the indictment against him.

      The cases considering constructive amendments to an indictment

are instructive. In Stirone v. United States, 361 U.S. 212, 218-19

(1960), the Supreme Court held that the defendant was convicted on

a charge the grand jury never made against him when the indictment

charged him only with interference with sand shipments but the jury

instructions stated that his guilt could also rest on interference

with steel shipments.            We cited Stirone in Floresca, where the

trial court read the jury the language of subsection b(1) of 18

U.S.C.     §   1512(b),     which   was    charged     in   the   indictment,     but

immediately thereafter instructed the jury that it could convict if

it found the defendant guilty under subsection b(3), a separate

crime not charged the indictment.                    We found that the court’s

instruction constructively amended the indictment by broadening the

bases for Floresca’s conviction and allowing the jury to convict

him   on   a   charge      not   made   in   the     indictment.     The    court’s

instruction      “was     more   than     just   a    misstatement    of    the   law

applicable      to   the    indicted      offense;     it   stated   a     distinct,


                                          -14-
unindicted offense.” Floresca, 38 F.3d at 710. Unlike Stirone and

Floresca, where the trial court instructed the jury on an offense

not mentioned in the indictment at all, in the instant case, the

district court instructed the jury on, and only on, offenses

(using,      carrying,     possessing)     expressly     mentioned     in   the

indictment.

      Floresca overruled a case, Moore v. United States, 512 F.2d

1255 (4th Cir. 1975), that, as this Court determined in Floresca,

should have resulted in a finding of constructive amendment. Moore

further demonstrates that what happened at Mingo’s trial was not a

constructive amendment of the indictment. In Moore, the indictment

charged the defendant with violating 26 U.S.C. § 5845(d) but the

trial court instructed the jury on § 5845(e).              Moore contained a

“clear example[] of constructive amendment” because the defendant

was convicted of a crime (§ 5845(e)) other than that charged in the

indictment (§ 5845(d)).        Floresca, 38 F.3d at 711.     Mingo’s case is

distinguishable.        Mingo was not, for example, indicted for the use

or   carry    offense    yet   subjected    to   jury   instructions   on   the

possession offense. Rather, the jury convicted him of either a use

or carry offense or a possession offense (it is true that we cannot

be sure of which one), both of which were charged in the indictment

(albeit conjunctively). Cf. United States v. Fletcher, 74 F.3d 49,

53 (4th Cir. 1996) (“When a defendant is convicted of charges not




                                     -15-
included in the indictment, an amendment has occurred which is per

se reversible error.”).

     Because   the     district    court’s   jury    instruction   did     not

impermissibly broaden the bases for Mingo’s conviction by allowing

him to be convicted of a crime not included in the indictment, the

district court did not fatally amend the indictment. Mingo’s claim

fails.



                                      C.

     Finally, Mingo contends that the district court erred in not

submitting two verdicts to the jury for Count Three because the

“uses or carries” clause and the “possession in furtherance of a

drug trafficking crime” clause of § 924(c) constitute two distinct

crimes, necessitating an alternative verdict.             Mingo apparently

argues that a special verdict form was required so that the jury

could indicate whether it was finding Mingo guilty of the use or

carry offense or the possession offense.           The government correctly

notes that Mingo has cited no authority for the proposition that §

924(c) requires a special verdict form.

     Addressing this claim would ordinarily require this Court to

decide   whether   §   924(c)     contains   two    distinct   offenses,    as

discussed earlier.     We need not reach that question because, even

assuming, arguendo, the statute criminalizes two distinct offenses,

there is no requirement in this Circuit that a special verdict form


                                     -16-
be submitted for those offenses.   To the contrary, we have allowed

juries to return a general verdict on a count alleging two separate

crimes so long as the defendant is sentenced only on the lesser

crime.    See United States v. Quicksey, 525 F.2d 337, 340-41 (4th

Cir. 1975).      Here, the statute authorizes a five-year prison

sentence for both a use or carry offense and a possession offense,

and Mingo received five years.

       Thus, although it is impossible to ascertain the precise

violation of § 924(c) the jury found Mingo to have committed, a

special verdict form was not required to prevent the district court

from imposing a greater sentence than Mingo warranted under the

law.     Finding no error and no prejudice in the district court’s

failure to submit an alternative verdict to the jury, we reject

this claim as well.



                                 III.

       For the reasons stated above, we affirm the convictions.

                                                           AFFIRMED




                                 -17-
