     Case: 13-11038   Document: 00512885708        Page: 1    Date Filed: 12/30/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                                                   United States Court of Appeals

                                    No. 13-11038
                                                                            Fifth Circuit

                                                                          FILED
                                                                   December 30, 2014
UNITED STATES OF AMERICA,                                            Lyle W. Cayce
                                                                          Clerk
             Plaintiff - Appellee

v.

BRANDON DESHAWN CAMPBELL,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Brandon Deshawn Campbell was convicted by a jury on one count of
possession with intent to distribute marijuana, one count of possession with
intent to distribute ecstasy, and two separate counts of possession of a firearm
in furtherance of each of those drug convictions. Campbell was sentenced to a
mandatory minimum of five years for his first firearm conviction, a mandatory
minimum of twenty-five years for his second firearm conviction, and a fifteen-
day concurrent sentence for his drug convictions.            On appeal, Campbell
challenges his second firearm conviction, which resulted in the imposition of a
     Case: 13-11038       Document: 00512885708          Page: 2     Date Filed: 12/30/2014



                                       No. 13-11038
twenty-five year mandatory minimum sentence. For the reasons stated herein,
we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND 1
       In December 2011, Brandon Campbell was engaged in a drug trafficking
enterprise along with his co-defendant Tyrone Allen. 2 Campbell and Allen
distributed marijuana and ecstasy from a drug house located in Dallas, Texas.
Detective Anthony Martin of the Dallas Police Department’s Narcotics
Division (“Narcotics Division”) was the lead detective in the investigation of
the drug house. On December 8, 2011, after receiving an investigative tip from
a confidential informant, Detective Martin attempted to conduct an undercover
buy at the drug house.           When the detective entered the drug house, he
encountered Campbell. The drug house contained a cage door that blocked
access to the kitchen but that allowed the detective to see inside the kitchen
and to converse with Campbell who was located inside the kitchen. While
Detective Martin attempted to negotiate the sale of an ounce of powdered
cocaine, Campbell aimed a black handgun with a laser pointer on it at the
detective.    Campbell ultimately did not sell Detective Martin any drugs
because he did not have the amount of drugs the detective was requesting at
that time.
       Detective Martin obtained a search warrant for the drug house that the
Narcotics Division executed on December 12, 2011, with the assistance of the
Dallas Special Weapons and Tactics (“SWAT”) Unit. During the search, the



       1 This opinion only discusses facts relevant to the charges upon which Campbell was
convicted with particular emphasis on the firearm counts. However, the superseding
indictment contained trafficking and firearm charges related to the trafficking of cocaine base
and evidence regarding those counts was submitted to the jury.
       2 Allen pled guilty pursuant to a plea agreement and was sentenced to eight years

imprisonment. See United States v. Allen, No. 3:12-cr-00181-O-1 (N.D. Tex. Nov. 27, 2012)
(plea agreement); United States v. Allen, No. 3:12-cr-00181-O-1 (N.D. Tex. June 6, 2013)
(sentence).
                                              2
    Case: 13-11038    Document: 00512885708      Page: 3   Date Filed: 12/30/2014



                                 No. 13-11038
detectives arrested Campbell and Allen and collected numerous items,
including cash, drugs, and firearms. The detectives found marijuana and
ecstasy in the house. The detectives also found five firearms inside the living
room: three handguns, one sawed-off shotgun, and one assault rifle. One
handgun was found on the arm of a couch, another handgun was found under
the couch’s cushion, and the last handgun was found on the floor near the
couch. One of the handguns found was the same handgun with a laser pointer
that Detective Martin had observed Campbell with days earlier. The sawed-
off shotgun and assault rifle were located underneath the couch.             In a
videotaped interview with a police detective, Campbell stated that his
fingerprints would be on two of the handguns, including the one with the laser
pointer. However, in that interview, Campbell further asserted that he mainly
dealt with the handgun with the laser pointer.
      Campbell was indicted under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and
841(b)(1)(C) for knowingly possessing marijuana and ecstasy with the intent
to distribute. The indictment charged Campbell for these drug offenses under
both a theory of Campbell as the principal and a theory of accomplice liability
pursuant to 18 U.S.C. § 2. The indictment also charged Campbell with two
separate counts of the possession of a firearm in furtherance of a drug
trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i) and (c)(1)(B)(i). The firearm
counts corresponded to each of the separate drug counts. Both firearm counts
listed each of the five firearms found in the drug house as possible weapons
upon which a conviction under those counts could be found. Campbell never
raised a claim, before or during trial, that the indictment was defective.
      A jury convicted Campbell on the aforementioned charges, including two
counts of the possession of a firearm in furtherance of a drug trafficking crime
corresponding to his separate convictions for the possession of marijuana and
the possession of ecstasy.    Although the superseding indictment did not
                                       3
    Case: 13-11038    Document: 00512885708     Page: 4   Date Filed: 12/30/2014



                                 No. 13-11038
specifically charge Campbell under 18 U.S.C. § 924(c)(1)(C)(i), which mandates
a twenty-five year mandatory minimum for a second or subsequent firearm
conviction under § 924(c), in the presentencing report (“PSR”), the United
States Probation Office recommended the twenty-five year mandatory
minimum for Campbell’s second firearm conviction in addition to the five-year
mandatory minimum under § 924(c)(1)(A)(i) for the first firearm count.
Consequently, despite Campbell having no criminal history, the PSR
recommended a minimum sentence of thirty years for the firearm counts alone.
      Campbell objected to the PSR contending that the imposition of the
twenty-five year mandatory minimum for his second firearm conviction under
§ 924(c)(1)(C)(i) did not apply where the evidence failed to establish more than
a single use of one firearm in conjunction with multiple predicate drug offenses.
In other words, Campbell argued that his second firearm conviction was
invalid because the jury verdict did not establish that Campbell possessed
more than one gun in connection to his two predicate drug offenses.
      Following a hearing on the matter, the district court overruled
Campbell’s objection in a written order. Although the district court stylized its
opinion as one regarding a sentencing objection, in substance, the district court
addressed Campbell’s objection as a motion for a judgment of acquittal as to
the second firearm count. See United States v. Campbell, No. 3:12-CR-181-
O(01), at *8 (N.D. Tex. Sept. 6, 2013) (“Therefore, the Court will review the
facts of this case to determine if the verdict should be upheld under this
standard.”).   The district court upheld the jury verdict finding there was
overwhelming evidence that different firearms supported convictions for each
of the predicate offenses. Id. (citing United States v. Foreman, 986 F.2d 1418,
at *5 (5th Cir. 1993); United States v. Privette, 947 F.2d 1259, 1263 (5th Cir.
1991)). Specifically, the district court found there was sufficient evidence that
Campbell possessed all five firearms and therefore, there was no danger that
                                       4
    Case: 13-11038     Document: 00512885708     Page: 5   Date Filed: 12/30/2014



                                  No. 13-11038
the two separate firearm convictions were based on the single use of a firearm
in conjunction with the two predicate drug offenses. See Campbell, No. 3:12-
CR-181-O(01), at *8–9. The district court further concluded that because the
jurors were allowed to find Campbell guilty of the drug counts under a theory
of aiding and abetting, the jury must have similarly found that Campbell aided
and abetted the possession of firearms as well.        See id. at *9–10 (“[T]he
evidence leads to no other conclusion but that Campbell and his co-defendant
agreed to distribute illegal narcotics from the drug house and they assisted
each other in doing so in an effort to successfully traffic narcotics. In relation
to this joint undertaking, they possessed the multiple firearms to further their
drug trafficking enterprise. Therefore, Campbell is responsible for all of the
firearms.”).
      Campbell now appeals the district court’s determination.
                             STANDARD OF REVIEW
      The parties dispute the standard of review that should be applied to
Campbell’s appeal. Although Campbell raises several arguments including
charging error by the government, inadequate jury instructions, an
unsupported jury verdict, and an unfairly enhanced punishment, we conclude
from our review of the record that the essence of Campbell’s appeal lies in his
contentions that the jury was improperly instructed and that, as a result, his
second firearm conviction was not supported by the jury verdict.            In so
construing Campbell’s challenge, we conclude that Campbell’s arguments on
appeal were not properly preserved below as they were first raised at
sentencing, over three months after his trial. See United States v. Harris, 740
F.3d 956, 965–66 (5th Cir. 2014); United States v. Pierre, 958 F.2d 1304, 1310
(5th Cir. 1992) (en banc) (recognizing that to preserve a claim of insufficiency
of the evidence a defendant must move for judgment of acquittal when the
government rests or at the close of all the evidence); see also United States v.
                                        5
     Case: 13-11038       Document: 00512885708         Page: 6     Date Filed: 12/30/2014



                                       No. 13-11038
Allison, 616 F.2d 779, 784 (5th Cir. 1980) (per curiam) (explaining that under
Federal Rule of Criminal Procedure 29(c), a claim of insufficiency of the
evidence can also be preserved by a timely motion filed after a guilty verdict
even in the absence of a motion at the close of the government’s case or at the
close of all the evidence).
       Therefore, we review for plain error. United States v. Compian-Torres,
712 F.3d 203, 206 (5th Cir. 2013). “To show plain error, a defendant must show
that a forfeited error is clear or obvious, and that it affects his substantial
rights. If such a showing is made, the Court has the discretion to correct the
error only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (citing Puckett v. United States, 556 U.S. 129, 135
(2009)).
                                     DISCUSSION
       Campbell contends in this appeal that because the jury verdict did not
establish that different firearms were possessed or used in connection to each
of his two drug trafficking predicate offenses, his second conviction under
§ 924(c)(1) cannot stand. Even if the question of whether Campbell possessed
two distinct firearms should have been presented to the jury, we do not
conclude that the district court clearly or obviously erred in its instruction. 3
Therefore, under our deferential plain error review, we affirm. Moreover, we
conclude there was sufficient evidence to support the jury’s verdict on the
second firearm count.
Multiple § 924(c)(1) Convictions for the Single Possession of a Firearm
       Section 924(c)(1) imposes a mandatory minimum of twenty-five years for
a second or subsequent conviction of possession of a firearm in furtherance of



       3 Neither party nor the court offered a jury instruction or interrogatory requiring the
jury to specifically identify which guns, if any, Campbell possessed.
                                              6
     Case: 13-11038       Document: 00512885708          Page: 7     Date Filed: 12/30/2014



                                       No. 13-11038
a drug trafficking crime. Id. In United States v. Phipps, 319 F.3d 177 (5th Cir.
2003), this court held that under the particular facts of that case, 4 “18 U.S.C.
§ 924(c)(1) does not unambiguously authorize . . . multiple convictions for a
single use of a single firearm based on multiple predicate offenses.” Id. at 180
(emphasis added). In reaching that conclusion, the court was cautious to leave
room for the possibility that under a set of facts distinct from those at issue in
Phipps, the statute might authorize multiple convictions for a single use of a
firearm. See, e.g., id. at 183 (“As applied to the facts of this case, § 924(c)(1) is
ambiguous…”) (emphasis added); id. at 187–88 (“Because § 924(c)(1) is
ambiguous on the facts of this case, we must…conclude that the statute does
not unambiguously authorize multiple convictions for a single use of a single
firearm based on multiple predicate offenses.”) (emphasis added). Campbell
contends that the jury verdict in this case allows for the possible finding that
on December 12, 2011, he was in possession of one single firearm in
furtherance of his two separate drug trafficking predicate offenses.
       Campbell argues that in order for the second firearm conviction to be
lawful, the jury needed to find that he possessed two or more guns. However,
the jury was not so specifically instructed, and Campbell did not object in this
regard to the jury instructions. For the § 924(c)(1) counts at issue, the district
court’s jury instructions did not require that any particular firearm be
possessed in furtherance of a particular predicate drug offense nor did it
require that a distinct firearm be possessed for the differing counts. Moreover,




       4  In Phipps, two defendants carjacked and kidnapped the victim after one of the
defendants put a gun to her head. 319 F.3d at 180. Immediately thereafter, the defendants
stopped the car to give the firearm to someone else. Id. at 180, 188. The defendants argued
on appeal that they could be convicted under § 924(c) “only once for the single use of a single
firearm.” Id. at 183. This court determined that § 924(c)(1) was ambiguous and applied the
rule of lenity to conclude that the statute did not authorize a second conviction under those
particular facts. Id.
                                              7
      Case: 13-11038   Document: 00512885708     Page: 8     Date Filed: 12/30/2014



                                  No. 13-11038
the instructions explained that proof of possession requires more than mere
presence of a firearm at the scene. As such, on these facts, the jury instructions
left open the possibility for two § 924(c)(1) convictions based upon the single
possession of one firearm.
        We conclude that the jury should have been required to decide the
question of whether Campbell possessed a second, separate firearm. The logic
underlying this court’s decision in Phipps applies to the facts of this appeal.
Utilizing principles of statutory interpretation, this court in Phipps decided
that the unit of prosecution under § 924(c)(1) is the possession (or use, or
carrying) of a firearm in furtherance of a predicate offense. 319 F.3d at 184.
Given this unit of prosecution, § 924(c)(1) does not authorize multiple
convictions for a single possession of a single firearm. Id. at 186. The statute
only allows for as many firearm counts as there are possessions of the firearm.
Id.   If the jury only found that Campbell possessed one firearm (i.e. the
handgun with the laser pointer) in connection to his marijuana and ecstasy
trafficking offenses, that possession would have constituted a singular unit of
prosecution under § 924(c)(1). For those reasons, on the facts of this case—
namely, the simultaneous presence of multiple guns and some evidence that
only one gun was actually possessed by the defendant—the jury should have
been instructed that in order to find a second § 924(c)(1) conviction, the
defendant must have been found to possess a firearm separate and distinct
from the firearm possessed in the first § 924(c)(1) count.
Plain Error Review
       Even though the question of whether a separate firearm was possessed
should have been submitted to the jury, we do not conclude that the error was
clear or obvious. Although we have concluded that the Phipps logic extends to
Campbell’s case, the Phipps court explicitly limited its holding to the facts of
that particular appeal. 319 F.3d at 188 (“Finally, we stress that our holding is
                                        8
    Case: 13-11038    Document: 00512885708     Page: 9   Date Filed: 12/30/2014



                                 No. 13-11038
limited by the unusual fact that defendants gave the firearm to Medina
immediately after using it.”); id. at 189 (“In light of this extraordinary fact,
§ 924(c)(1) does not unambiguously authorize multiple convictions for a single
use of a single firearm based on multiple predicate offenses.”). Therefore, it
was not clear or obvious that Phipps applied to the facts of Campbell’s case.
      For that same reason, the district court did not plainly err in not
granting a judgment of acquittal for the second firearm count. Indeed, even
under our de novo review, Campbell’s sufficiency challenge would fail. Under
our de novo standard, we view “the evidence in the light most favorable to the
government [and] determine whether any rational jury could conclude from
the evidence presented at trial that the government had proven all of the
elements of the offense beyond a reasonable doubt.” United States v. Carbajal,
290 F.3d 277, 289 (5th Cir. 2002). While we have determined that, under these
facts, the two separate § 924(c)(1) convictions required a finding that two
separate firearms were possessed, we also conclude that a rational jury could
have found that the government met its burden beyond a reasonable doubt.
There were five firearms present when the search warrant was executed and
a reasonable jury could have concluded that Campbell possessed at least two
of those guns. In fact, Campbell stated that his fingerprints would be found on
two of the weapons. Thus, there was sufficient evidence to support Campbell’s
second firearm conviction.
                               CONCLUSION
      Because the district court did not plainly err in instructing the jury and




                                       9
    Case: 13-11038       Document: 00512885708          Page: 10     Date Filed: 12/30/2014



                                       No. 13-11038
because there was sufficient evidence to support Campbell’s second firearm
conviction, we AFFIRM. 5




       5 Campbell also raises claims that the two § 924(c) convictions violate double jeopardy
and that the simultaneous possession of different controlled substances amounts to only one
drug-trafficking offense such that only one of his § 924(c) convictions is supported by a
predicate drug offense. However, Campbell concedes that these two arguments are foreclosed
by our precedents in United States v. Davis, 656 F.2d 153, 160 (5th Cir. 1981) and United
States v. Privette, 947 F.2d 1259, 1262 (5th Cir. 1991) respectively. Campbell has raised these
issues only to preserve review on appeal.
                                             10
