                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 05-2897
UNITED STATES OF AMERICA,
                                          Plaintiff-Appellee,
                             v.

LARRY HARVEY,
                                      Defendant-Appellant.
                       ____________
          Appeal from the United States District Court
              for the Western District of Wisconsin.
        No. 05-CR-12-C—Barbara B. Crabb, Chief Judge.
                       ____________
   ARGUED SEPTEMBER 7, 2006—DECIDED APRIL 17, 2007
                   ____________


  Before RIPPLE, KANNE, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. After Larry Harvey was caught
driving with drugs and a gun in his glove compartment, he
wound up facing a federal indictment charging him
with violations of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 924(c)(1)(A). Section 841(a)(1), as relevant to Harvey,
prohibits possession of cocaine base with intent to dis-
tribute it; section 924(c) prohibits in various ways the use,
carrying, or possession of a firearm when there is some
nexus to either a crime of violence or a drug trafficking
crime. In Harvey’s case, the language used in the indict-
ment to charge his § 924(c) “carrying” offense differed
slightly from the wording of the statute. Harvey pleaded
guilty to both counts of the indictment, but he now claims
2                                               No. 05-2897

that the § 924(c) count failed to charge a federal offense.
He argues that the poorly-crafted indictment should be
dismissed, or, in the alternative, that he should be allowed
to withdraw his guilty plea. Harvey also protests that the
district court erred by ordering him to submit to drug
testing at the direction of the probation officer as a
condition of his supervised release. Finding no error, we
affirm.


                              I
  Harvey was driving his car in Beloit, Wisconsin, on
January 7, 2005, when some police officers pulled him over
for a traffic violation. As one officer approached the car, he
noticed open beer bottles inside the car and asked the
occupants to step out of the vehicle. His suspicions were
aroused immediately when the passenger fled on foot.
Harvey was wise enough not to do that; instead, he
cooperated while the officers conducted a pat-down search,
which turned up $2,500 cash in his pants pocket. The
officers then arrested Harvey and searched the rest of
the car. In the glove box, they found 50.07 grams of crack
cocaine, 11.74 grams of powder cocaine, 15.2 grams of
marijuana, a digital scale, a loaded .32 caliber KelTec
handgun with an obliterated serial number, and a Wiscon-
sin certificate of title to an automobile bearing Harvey’s
name.
  On January 26, 2005, a grand jury returned a two-count
indictment, charging Harvey with possession of more
than five grams of a mixture or substance containing
cocaine base with intent to distribute and with “knowingly
and intentionally carr[ying] a firearm . . . in furtherance
of a drug trafficking crime . . . .” Harvey pleaded guilty to
both counts. He was sentenced to 96 months’ imprison-
ment on the first count, and a consecutive 60 months on
No. 05-2897                                                  3

the second, which added up to a combined sentence of 156
months, all of which was to be followed by a five-year term
of supervised release.


                              II
  Harvey argues that the second count of the indictment
fails to charge him with a federal offense. Count 2 accuses
Harvey of violating 18 U.S.C. § 924(c)(1), 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 firearm, shall, in addition to the punish-
    ment provided for such crime of violence or drug
    trafficking crime . . . be sentenced to a term of impris-
    onment of not less than 5 years . . . .
18 U.S.C. § 924(c)(1)(A)(I). Harvey claims that § 924(c)
defines two distinct offenses: one makes it illegal to use or
carry a firearm during and in relation to a crime of
violence or drug trafficking crime; and the other makes it
a crime to possess a firearm in furtherance of any such
crime. The indictment, he continues, does not follow either
pattern. Instead, it mixes the “carrying” language of the
first part with the “in furtherance of ” phrase of the
second part. This, Harvey argues, amounts to the creation
of an impermissible hybrid § 924(c) offense.
  We consider first whether, in light of the fact that
Harvey pleaded guilty, we should reach this argument at
all. As we pointed out in United States v. Behrman:
    [The] contention that all constitutional arguments
    always may be presented despite promises made in
    plea agreements (and no matter what the agreement
    says) is impossible to reconcile with cases such as
4                                               No. 05-2897

    Bousley v. United States, 523 U.S. 614 (1998), United
    States v. Broce, 488 U.S. 563 (1989), and Mabry v.
    Johnson, 467 U.S. 504, 508 (1984), which hold that by
    pleading guilty defendants waive all objections—
    including constitutional objections—to their convic-
    tions. Only arguments that would nullify the plea
    itself survive. If a voluntary guilty plea may waive a
    basket full of potential constitutional objections to
    searches and seizures, confessions, and the validity
    of the indictment and prosecution (including claims
    under the double jeopardy clause that logically would
    preclude any sentence), it is impossible to see why a
    voluntary plea agreement may not waive constitu-
    tional objections to the particular sentence imposed.
235 F.3d 1049, 1052 (7th Cir. 2000) (emphasis added). If
Harvey were not seeking to withdraw his plea agreement,
Bousley implies that the only argument he could present
here is one of actual innocence—not mere legal insuffi-
ciency. See 523 U.S. at 623-24. Harvey has asked, how-
ever, to withdraw his plea. The government points out that
he failed to do so before the district court, and thus that
our review is limited to an evaluation of plain error. See
United States v. Vonn, 535 U.S. 55, 59 (2002); United
States v. Martinez, 289 F.3d 1023, 1029 (7th Cir. 2002). We
agree with its assessment, and we thus proceed to con-
sider Harvey’s argument about the indictment on that
basis.
  Because Harvey challenges the indictment for the first
time on appeal, we will uphold its validity “unless it is so
obviously defective as not to charge the offense by any
reasonable construction.” United States v. Smith, 223 F.3d
554, 571 (7th Cir. 2000) (quoting United States v. Vander-
berg, 358 F.2d 6, 10 (7th Cir. 1966)); see also United States
v. Johnson, 805 F.2d 753, 758 (7th Cir. 1986) (same).
Generally speaking, “tardily challenged indictments
No. 05-2897                                                 5

should be construed liberally in favor of validity.” United
States v. Smith, 230 F.3d 300, 306 n.3 (7th Cir. 2000).
  Rule 7(c)(1) of the Federal Rules of Criminal Procedure
requires that an indictment be “a plain, concise, and
definite written statement of the essential facts constitut-
ing the offense charged. . . .” FED. R. CRIM. P. 7(c)(1). This
court has said that “[a]n indictment is constitutionally
sufficient and satisfies FED. R. CRIM. P. 7(c)(1) if it states
the elements of the crime charged, informs the defendant
of the nature of the charge so she may prepare a defense,
and enables the defendant to plead the judgment as a
bar against future prosecutions for the same offense.”
United States v. Agostino, 132 F.3d 1183, 1189 (7th Cir.
1997) (citing Hamling v. United States, 418 U.S. 87
(1974)). In order for an indictment adequately to notify
the defendant of the nature of the charges against him or
her, “we require, at a minimum, that it provide some
means of pinning down the specific conduct at issue.”
Smith, 230 F.3d at 305. While it is normally sufficient for
an indictment to track the words of the statute under
which the defendant is being charged, this kind of mimicry
is not necessary. Instead, “Indictments are reviewed on a
practical basis and in their entirety, rather than in a
hypertechnical manner.” Smith, 230 F.3d at 305 (internal
quotations omitted). The question is not “whether the
indictment could have been framed in a more satisfactory
manner, but whether it conforms to minimal constitu-
tional standards.” United States v. Allender, 62 F.3d 909,
914 (1995).
  Applying these standards, the indictment in this case,
while not perfect, is not so defective as to require reversal.
It included enough information to notify Harvey of the
statute under which he is being charged and the specific
way in which he allegedly violated that law. Whether we
construe § 924(c) as creating one offense or two, it remains
true that the separate parts of § 924(c) criminalize sim-
6                                               No. 05-2897

ilar behavior. See United States v. Castillo, 406 F.3d 806,
814 (7th Cir. 2005) (“Quite simply, the portion of § 924(c)
upon which we focus was intended to ‘combat the danger-
ous combination of drugs and guns.’ ” (quoting Muscarello
v. United States, 524 U.S. 125, 132 (1998)). The language
used in the indictment here alerts Harvey that he is
being charged with what the statute as a whole aims to
prevent: carrying a firearm that is closely connected to
an underlying drug offense.
  The Tenth Circuit faced a problem very similar to the
one before us in United States v. Avery, 295 F.3d 1158
(10th Cir. 2002). In Avery, the defendant was charged
under § 924(c) after drugs and numerous firearms were
found in his house. The indictment “employ[ed] the ‘use or
carry’ prong’s ‘during and in relation to’ language where
the terms ‘in furtherance of ’ should have been used.”
Avery, 295 F.3d at 1172. In affirming Avery’s § 924(c)
convictions, the court emphasized the fact that “the
difference between the ‘in furtherance of ’ language and the
‘during and in relation to’ language is only slight.” Id. at
1174 (certain internal quotations omitted); see also United
States v. Mackey, 265 F.3d 457, 461 (6th Cir. 2001) (noting
that the distinction between the two standards is “some-
what elusive”). The Avery court found that, although the
two standards are not identical, they “appear to carry
substantially the same import, namely that there must
be a nexus between the firearm and the alleged crime, and
that the mere possession of the firearm by a person
connected to and engaged in a drug trafficking crime is
insufficient to trigger § 924(c)(1).” Avery, 295 F.3d at 1175;
see also United States v. Arreola, 446 F.3d 926, 933 (9th
Cir. 2006) (“The two types of conduct that § 924(c) pro-
scribes are difficult to distinguish conceptually.”). The
similarity between the two § 924(c) standards, coupled
with the fact that Avery waited until after the verdict to
challenge the indictment, led the court to conclude that
No. 05-2897                                                7

the deficiencies in the indictment were insufficient to
warrant reversal. Avery, 295 F.3d at 1176.
  Like the Avery court, we find that the phrases used in
the two parts of the statute are close enough in meaning
that Harvey knew the essence of the charges he was
facing. Cf. United States v. Weatherspoon, 581 F.2d 595,
600 (7th Cir. 1978) (“In determining whether an essential
element of the crime has been omitted from the charge,
courts will not insist that any particular word or
phrase . . . be used. The element may be alleged in any
form which substantially states it.” (internal citations
and quotations omitted)). Harvey’s indictment provided
further notice to him by referring to the time and place of
his offense and by citing § 924(c)(1). See United States v.
Roya, 574 F.2d 386, 391 (7th Cir. 1978) (finding an indict-
ment sufficient in part because the indictment referenced
“the time and place of the defendant’s conduct which
violated that offense, and citation to the statute or stat-
utes allegedly violated”).
  Our review of Harvey’s plea colloquy bolsters our
confidence that he was adequately apprised of the charges
against him. In addition to admitting to “knowingly and
intentionally . . . carrying a [firearm]” and to doing so “in
furtherance of this drug distribution,” Harvey volunteered
without prompting that he realized that the gun charge
carried a “consecutive value.” The government’s factual
proffer was detailed and straightforward; Harvey also
offered his own rendition of the facts. With respect to the
facts supporting the § 924(c) charge, Harvey admitted,
“The officer . . . used the glove box key to open the glove
box which way [sic] he found everything. That’s where
everything was contained that was in my possession.” The
judge responded with the following inquiry:
    THE COURT: And you did have cocaine base or crack
    cocaine in your car?
    HARVEY: Yes.
8                                               No. 05-2897

    THE COURT: And you had the gun?
    HARVEY: Yes.
Taken as a whole, the depth and clarity of the plea collo-
quy demonstrate convincingly that Harvey knew exactly
what he was doing and its consequences. See United States
v. LeDonne, 21 F.3d 1418, 1424 (7th Cir. 1994) (“Utilizing
the prosecutor at a plea hearing to identify for the defen-
dant the elements of the offense charged, followed by
inquiry of the defendant by the judge confirming the
defendant’s understanding of the elements is an effective
method for determining that the defendant understands
the nature of the charge to which the plea is offered.”
(internal quotation marks omitted)).
   Moreover, to the extent that the phrase “in furtherance
of ” differs at all from the phrase “during and in relation
to,” the former wording logically connotes a higher stan-
dard of participation. See, e.g., Arreola, 446 F.3d at 931
(examining the legislative history of § 924(c) and conclud-
ing that Congress believed “that ‘in furtherance of ’ is a
slightly higher standard, and encompasses the ‘during
and in relation to’ language.”); United States v. Combs, 369
F.3d 925, 933 (“[W]e conclude that ‘in furtherance of ’
differs from ‘during and in relation to’ and requires the
government to prove a defendant used the firearm with
greater participation in the commission of the crime. . . .”).
Thus, if anything, the government charged and Harvey
admitted to a greater connection between the drugs and
the gun he carried than the statute may have required. In
substance, then, Harvey’s admissions during the plea
colloquy included the fact that he had carried the firearm
“during and in relation to” a drug crime. He cannot now
claim that he did not understand the charge. If he had
genuinely been confused, he should have said something
to the judge during the Rule 11 colloquy, at a time when
the government easily could have corrected the problem.
No. 05-2897                                              9

  Only a pointlessly hypertechnical reading of the indict-
ment in this case would support Harvey’s claim that it
was inadequate. Such a reading is particularly inappro-
priate here, where the indictment was not challenged at
the trial level, and where we know that Harvey in fact
understood what he was being charged with. We therefore
reject Harvey’s claim that the indictment failed to charge
him with a crime described in § 924(c). For much the
same reasons, we also reject Harvey’s argument that he
should be permitted at this late date to withdraw his
guilty plea. He does not argue that there was any other
reason why his plea was not entered knowingly and
voluntarily, and we see none on this record.


                           III
  We turn now to Harvey’s sentencing claim. He contends
the district court erred by delegating to the probation
officer the authority to determine the number of drug
tests to which he had to submit during his supervised
release. At the time this case was argued, the law strongly
supported Harvey’s claim, to the point that the govern-
ment was ready to concede that the district court had
committed plain error. This court, however, has recently
reconsidered the question whether defendants are entitled
to relief when the court fails to determine the number of
drug tests, even if they do not object at sentencing. See
United States v. Tejeda, 476 F.3d 471 (7th Cir. 2007). In
Tejeda, we held that even though such a delegation is
an error and would be subject to correction upon a timely
objection, it is not so serious that it should also be con-
sidered plain error.
  Under the statute, a sentencing court has the authority
to order drug testing as a condition of supervised release:
   The court shall also order, as an explicit condition of
   supervised release, that the defendant refrain from
10                                               No. 05-2897

     any unlawful use of a controlled substance and submit
     to a drug test within 15 days of release on supervised
     release and at least 2 periodic drug tests thereafter (as
     determined by the court) for use of a controlled sub-
     stance.
18 U.S.C. § 3583(d). In United States v. Bonanno, 146 F.3d
502, 511 (7th Cir. 1998), we held that this statute does
not permit the court to delegate the authority to specify
the number of tests to the probation officer. But under
plain error review, Bonanno only gets Harvey partway
home, and Tejeda is an insurmountable roadblock. In
Tejeda, we said that “[a] delegation of discretion over the
mechanics of drug testing—when the testing itself is
ordered by the court—can hardly be said to affect sub-
stantial rights of a defendant.” Tejeda, 476 F.3d at 475.
The facts of this case are almost identical to those of
Tejeda. In each case, the district court ordered drug test-
ing and then delegated nearly wholesale authority to the
probation officer to administer the tests. As we noted in
Tejeda, “Should the probation officer impose onerous
requirements, the condition requiring drug testing can
be modified at any time prior to the expiration or termina-
tion of the term of supervised release.” Id. Any problems
that may arise from this improper delegation are easily
remedied and unlikely to materialize any time soon, since
Harvey faces a significant period of incarceration before
his period of supervised release begins. Like the de-
fendant in Tejeda, therefore, Harvey cannot show that the
delegation of authority in this case affects his substan-
tial rights.


                             IV
    We hold that the indictment was sufficient in this case,
Harvey is not entitled to withdraw his guilty plea, and the
error in the supervised release provisions of his sentence
No. 05-2897                                          11

does not amount to reversible plain error. We therefore
AFFIRM the judgment of the district court.

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                 USCA-02-C-0072—4-17-07
