                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-4302



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus

JAMES EDWARD MILBOURNE,

                                             Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Malcolm J. Howard,
District Judge. (CR-03-121-H)


Argued:   February 3, 2005                   Decided:   May 11, 2005


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished opinion. Judge Gregory wrote the opinion.
Judge Traxler wrote a separate opinion concurring in the result.
Judge Shedd wrote a separate concurring opinion.


ARGUED: James Edward Todd, Jr., Research and Writing Specialist,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for
Appellant.    Christine Witcover Dean, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.    ON BRIEF: Thomas P. McNamara, Federal
Public Defender, G. Alan DuBois, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. Frank D. Whitney, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
GREGORY, Circuit Judge:

      James Edward Milbourne (“Milbourne”) appeals his conviction

for possession of a firearm by a felon, in violation of 18 U.S.C.

§   922(g)(1)    (Count     I);   possession       with   intent        to   distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count II); and

carrying a firearm during and in relation to the drug trafficking

crime set forth in Count II, and possession of a firearm in

furtherance of that drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1) (Count III).            On appeal, Milbourne asserts that

the       Government     violated    his        Fifth     Amendment          rights    by

constructively         amending   the      indictment,         and     challenges     the

sufficiency of the evidence as to Count III.                            We affirm his

conviction.



                                           I.

      On November 16, 2002, several officers from the Raleigh Police

Department      executed     a    search       warrant    at     the     residence     of

Milbourne’s girlfriend, Katrina Ross (“Ross”).1                      When the officers

arrived, they made a forced entry into the residence and secured

seven adults and two children present in the residence.                             After

searching Milbourne, an officer found a “nickel” or “dime” bag of




      1
      Milbourne maintained a separate residence but often stayed
with his girlfriend.

                                           3
marijuana on his person.2   Another officer found a semi-automatic

pistol between the mattress and box spring in Ross’s bedroom.     The

officer questioned Milbourne about the gun. After verbally waiving

his Miranda rights, Milbourne admitted that he had previously

purchased the firearm from a man named Zollie Gibson (“Gibson”),

also present in the residence at the time of the search.    Milbourne

told the officer that he had only used the gun once, after an

altercation that took place outside of his residence.       Milbourne

had been previously convicted of a felony and his right to possess

a gun had not been restored.

     The officer also asked Milbourne if he had any contraband in

the residence.   Milbourne directed the officer to a jacket in the

closet of Ross’s bedroom that contained bags amounting to 11.5

grams of marijuana.3   Milbourne admitted that he sold “an ounce or

two” per week and made about $175 in weekly profit.        During the

search, the officers also found two marijuana cigarette butts, some

marijuana seeds, and plastic baggies.




     2
      A “nickel” bag contains one (1) gram of marijuana and a
“dime” bag contains two (2) grams. J.A. 78.
     3
      Milbourne stipulated that this was the amount of marijuana in
the jacket, J.A. 36, however, as indicated by the Assistant United
States Attorney during oral argument, the 11.5 gram calculation
represents the combined amount of the marijuana present on
Milbourne’s person and in the jacket.        The jacket contained
approximately 10 grams of marijuana and the remainder was found in
a nickel or dime bag on Milbourne’s person.

                                 4
       In addition, the officers found an “eight-ball” of crack

cocaine in the kitchen.4              The testimony at trial indicated that

Gibson had dropped the cocaine just as the officers entered the

residence.      Milbourne admitted that Gibson had brought the crack

cocaine over for Milbourne to sell, but stated that he had not

taken possession of the crack cocaine at the time of the search.

Milbourne was not charged with a crime in relation to the crack

cocaine and, at trial, an officer stated that the Government did

not have enough evidence to charge anyone with the cocaine.

       After the search, in an effort to cooperate with the police,

Milbourne made a phone call to a drug supplier and ordered an

amount of cocaine.              The supplier was unable to make a timely

delivery and the investigation was terminated.

       At trial, Milbourne moved for a judgment of acquittal on Count

III, the charge of possession of a firearm in furtherance of the

drug trafficking crime of possession with intent to sell marijuana,

both at the close of the Government’s case and at the close of the

evidence.      The district court denied both motions.                Milbourne then

filed a motion for acquittal on Count III, which the district court

also       denied.     The       district       court    sentenced    Milbourne    to

imprisonment for 120 months on Counts I and II to be served

concurrently,        and   to    60   months      on    Count   III   to   be   served



       4
      The “eight-ball” contained approximately 2.8 grams of cocaine
base (crack). J.A. 120-21.

                                            5
consecutively to the sentences on Counts I and II.               This appeal

follows.



                                         II.

      A.      Constructive Amendment of Indictment

      Milbourne argues that the Government, in both its presentation

of evidence and argument, relied heavily upon evidence of cocaine

dealing and of drug dealing in general to establish the nexus

between possession of a firearm and drug dealing required by §

924(c).      This, he argues, amounted to a constructive amendment of

Count III of the indictment, which charged him with possession of

a firearm in furtherance of the specified predicate drug crime of

possession with intent to distribute marijuana.            Issues raised for

the first time on appeal are subject to plain error review.                Fed.

R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725 (1993).

However, “constructive amendments of a federal indictment are error

per se, and under Olano, must be corrected on appeal even when not

preserved by objection.”          United States v. Floresca, 38 F.3d 706,

714 (4th Cir. 1994) (en banc).

      The    Fifth   Amendment     to    the   United   States   Constitution

guarantees that a criminal defendant may only be tried on charges

alleged in an indictment, and “only the grand jury may broaden or

alter the charges in the indictment.”             United States v. Randall,

171   F.3d    195,   203   (4th   Cir.    1999)   (internal   quotations   and


                                          6
citations omitted).          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     instruction     to    the   jury),   or   both,   broadens    the

possible bases for conviction beyond those presented by the grand

jury.     Floresca, 38 F.3d at 710.             A constructive amendment is a

“fatal variance” 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. Schnabel, 939 F.2d 197, 203 (4th

Cir. 1991).

      Not all differences between an indictment and the proof

offered at trial rise to the “fatal” level of a constructive

amendment. Randall, 171 F.3d at 203 (citing United States v. Redd,

161 F.3d 793, 795 (4th Cir. 1998)).                When different evidence is

presented at trial but the evidence does not alter the crime

charged in the indictment, a “mere variance” occurs.                  Id.   A mere

variance does not violate a defendant’s constitutional rights

unless it prejudices the defendant either by surprising him at

trial and hindering the preparation of his defense, or by exposing

him to the danger of a second prosecution for the same offense.

Id.

      Section 924(c)(1)(A) of Title 18, the offense charged in Count

III of Milbourne’s indictment, prohibits a person from using or


                                           7
carrying a firearm “during and in relation to a crime of violence

or drug trafficking crime,” and from possessing a firearm “in

furtherance of such crime.”            18 U.S.C. § 924(c)(1)(A) (2000).

Proof of a predicate offense is an essential element of a § 924(c)

violation. Randall, 171 F.3d at 205.         The government does not have

to   charge    or     convict   the   defendant   of   a   predicate   offense

separately, but if it so chooses, “it [is] not allowed through the

presentation of its evidence or its argument, and the district

court [is] not allowed through its jury instructions, to broaden

the bases of conviction to include [a] different § 924(c) predicate

offense.”      Id. at 210.

      First, we address whether the district court constructively

amended the indictment.         The district court’s jury instructions on

Count III of the indictment were as follows:

           Count Three, carrying a firearm during a drug
      trafficking crime. Count Three of the indictment charges
      that on or about November 16, 2002 in the Eastern
      District of North Carolina, the defendant Mr. Milbourne,
      also known as Junebug, knowingly carried a Beretta .9-
      millimeter semiautomatic pistol, during and in relation
      to a drug trafficking crime for which he may be
      prosecuted in a court of the United States, as set forth
      in Count Two, and did possess said firearm in furtherance
      of such drug trafficking crime, all in violation of Title
      18, United States Code, Section 924(c)(1), another
      federal law.

              . . .

           For you to find Mr. Milbourne guilty of this crime,
      you must be convinced that the government has proved each
      of the following three elements beyond a reasonable
      doubt.


                                        8
          First, that the defendant committed the crime
     alleged in Count Two. That is, he possessed with intent
     to distribute marijuana, and I instruct you that is a
     drug trafficking crime. In other words, to consider and
     to deliberate Count Three, the possession of a firearm
     during or in relation to or furtherance of a drug
     trafficking crime, you must have already found the
     defendant guilty of Count Two because if you found the
     defendant not guilty of Count Two, the drug trafficking
     crime, you don’t consider Count Three. . . .

J.A. 243-44 (emphasis added).             Thus, the district court judge

specifically instructed the jury that they had to find Milbourne

guilty of the drug trafficking crime alleged in Count II to find

him guilty on Count III, and that this drug trafficking crime was

possession   with    intent   to   distribute    marijuana.      Under    this

instruction, the district court judge did not broaden the possible

bases for conviction beyond that presented to the grand jury.

     However,   as     Floresca    notes,     the   government    can     also

constructively amend the indictment through its presentation of the

evidence and/or its argument.        38 F.3d at 710.     Thus, we look to

the Government’s evidence and argument.              In the Government’s

opening statement, it described the discovery of both crack cocaine

and marijuana during the search and Milbourne’s admission to the

police that he had been selling marijuana.           J.A. 24-25.        In its

presentation of the evidence, the Government called Sergeant Craig

Haines (“Haines”), who assisted in the search.           Regarding drugs,

the Government questioned Haines about:             finding marijuana on

Milbourne’s person, id. at 65; the discovery of marijuana in the

bedroom in Ross’s apartment, id. at 72; the discovery of crack

                                      9
cocaine on the kitchen floor and Milbourne’s statement that Gibson

brought the crack over for him to sell but that he had not taken

possession of it yet, id. at 78; and the failed attempt to have

Milbourne make a controlled purchase of cocaine, id. at 80.                 The

Government also called a forensic chemist and questioned her about

her testing on the crack cocaine.          Id. at 120.

     During closing arguments, the Government, while discussing

Count III, mentioned crack cocaine several times.                First, after

extensively discussing its proof on the crime of possession with

intent to distribute marijuana, it stated that Gibson, the same man

who Milbourne bought the gun from also brought crack cocaine over

for Milbourne to sell.      Id. at 208-09.       Second, when discussing why

Gibson had the gun, it stated that the jury could consider the

crack cocaine that Gibson brought over for Milbourne to sell.               Id.

at 209-10.    Third, in describing the scene in the house, it noted

that Gibson, who had the crack cocaine on his person, threw it down

on the kitchen floor when the police arrived.                    Id. at 210.

Finally, in its rebuttal argument, it responded to Milbourne’s

attorney’s    question   to   the   jury   during     his   closing   argument

regarding the Government’s motives in mentioning the crack cocaine,

by stating that it introduced the crack cocaine because it was

probative to show that Milbourne was a drug dealer.              Id. at 230.

     The     Government’s     references    to     crack    cocaine   are   not

substantial enough to broaden the possible bases of conviction to


                                     10
include possession with intent to sell crack cocaine or another

drug trafficking crime involving crack cocaine.5        The Government’s

evidence simply showed that a substance, which the forensic chemist

concluded was crack cocaine, was discovered in the search.               Its

opening   statement   only   mentioned   that   the   crack    cocaine   was

discovered during the search.

     The only statement that could possibly be argued to broaden

the base for conviction occurred during the Government’s closing

argument when it mentioned in the context of Count III that the

jury could consider the crack cocaine that Gibson brought over for

Milbourne to sell.    This statement could be seen as the Government

arguing to the jury that a nexus exists between the gun and selling

crack cocaine.   However, the fairest reading of that statement in

context indicates that the Government was trying to show that

Gibson, the man Milbourne bought the gun from, was a drug supplier

and the gun was thus intended to be used in conjunction with

Milbourne’s drug crimes -- selling marijuana.6                Even if this

statement is read as the former, it is not enough to cause the sort


     5
      Indeed, testimony was presented that Milbourne never took
possession of the crack cocaine and that the Government did not
charge Milbourne with a crime relating to the crack cocaine because
it did not have enough evidence against him.
     6
      Further support for such a reading comes from the
Government’s subsequent statements in closing: “You can consider
that the defendant bought the gun from another drug dealer for
$200. Why did he buy that gun from a drug dealer? He couldn’t
have it.   Why did he get it from the drug dealer?    It was to
further his drug trafficking operation.” J.A. 210.

                                   11
of structural defect in the trial mechanism equal to a constructive

amendment    of    the   indictment.    As   noted   in   United    States   v.

Williams, 106 F.3d 1173 (4th Cir. 1997), a case in which the

defendant similarly argued that a constructive amendment of the

indictment had occurred, “[t]he actions complained of here occurred

wholly within the context of closing argument.            It is doubtful at

best if any error occurred under Floresca in this case.”               Id. at

1176.

     Here, the Government’s closing argument, considered as a

whole, clearly indicated to the jury that Count II, possession with

intent to distribute marijuana, was the predicate offense that it

had to find under § 924(c).             Moreover, the district court’s

instructions explicitly stated as much.              Thus, no constructive

amendment of the indictment occurred.

     B.     Sufficiency of the Evidence

        Milbourne contends that the district court erred in denying

his motions for judgment of acquittal on the violation of 18 U.S.C.

§ 924(c), in which he argued that insufficient evidence existed to

find beyond a reasonable doubt that he possessed the firearm in

furtherance of his possession with intent to deliver marijuana. In

reviewing    the    sufficiency   of   the   evidence,    this     court   must

determine whether, construing the evidence in the light most

favorable to the government, any reasonable trier of fact could

have found the defendant guilty beyond a reasonable doubt.             United


                                       12
States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982).   The court

must “allow the government the benefit of all reasonable inferences

from the facts proven to those sought to be established” in making

this determination.   Id.

     As discussed, a § 924(c) conviction requires proof beyond a

reasonable doubt that a person: (1) committed a drug crime; and

either (2) used or carried a firearm during and in relation to that

crime; or (3) possessed a firearm in furtherance of that drug

crime.   18 U.S.C. § 924(c)(1)(A) (2000).      The “possession in

furtherance” element is at issue here.7       In determining what

evidence is sufficient to establish a violation of § 924(c), the

statutory term “furtherance” should be given its plain meaning of

“‘[t]he act of furthering, advancing, or helping forward.’” United

States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (quoting

Webster’s II New College Dictionary 454 (1999)).     Therefore, “§

924(c) requires the government to present evidence indicating that

the possession of the firearm furthered, advanced, or helped

forward a drug trafficking crime.” Id. Whether the firearm served

such a purpose is a question of fact.   Id.




     7
      Congress added this element to the statute in an apparent
response to the Supreme Court’s decision in Bailey v. United
States, 516 U.S. 137 (1995), which had found that possession of a
firearm was insufficient to sustain a conviction under § 924(c)’s
“use” element.   Because the gun was not on Milbourne’s person,
“constructive possession” is at issue here.

                                13
       In Lomax, the court adopted a series of factors set out by the

Fifth Circuit in its decision in United States v. Ceballos-Torres,

218 F.3d 409 (5th Cir. 2000), that might lead a fact finder to

conclude that a connection existed between a defendant’s possession

of a firearm and his drug trafficking crime.              Lomax, 203 F.3d at

705.    These factors include, but are not limited to: “the type of

drug   activity   that    is   being    conducted,    accessibility    of   the

firearm, the type of weapon, whether the weapon is stolen, the

status of the possession (legitimate or illegal), whether the gun

is loaded, proximity to drugs or drug profits, and the time and

circumstances     under   which   the    gun   is   found.”    Id.    (quoting

Ceballos-Torres, 218 F.3d at 414-15).          Clearly, “mere presence” of

a firearm at the scene is not enough to convict.           See United States

v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004); United States v.

Mackey, 265 F.3d 457, 462 (6th Cir. 2001); Ceballos-Torres, 218

F.3d at 414.

       First, looking to the type of drug-activity being conducted,

a relatively small amount of marijuana, 11.5 grams, was found in

the jacket in Ross’s bedroom.           Milbourne told the police that he

only sold one to two ounces of marijuana per week, a statement not

discredited with any testimony at trial.            This is a small amount of

drugs in relation to other cases in which courts have found a §

924(c) violation.        See Lomax, 293 F.3d at 705 (nineteen hits of

crack found on defendant’s person while he was waiving gun); United


                                        14
States v. Krouse, 370 F.3d 965, 967 (9th Cir. 2004) (86.5 grams of

cocaine, 150 lbs. of marijuana); Ceballos-Torres, 218 F.3d at 411

(569.8 grams of cocaine).

       Second, looking to the accessibility of the weapon, it was

between the mattress and box spring in Ross’s bedroom. Thus, while

it could be retrieved with little effort, it was not within

immediate     reach.     Third,    the    gun   was   Beretta    9    millimeter

semiautomatic pistol, which is a common type of gun.                        Fourth,

Milbourne bought the gun from Gibson but no evidence was introduced

as to whether it was stolen.       Fifth, Milbourne did possess the gun

illegally because he had been previously convicted of a felony.

Sixth, the gun was loaded.

       Seventh, looking to the proximity of the gun to the drugs, the

gun was found in the bed and the drugs were found in the pocket of

a jacket in the closet.       Thus, they were in the same room but not

together in the same place or within immediate reach of one

another, although they could be picked up together with little

effort. Finally, looking to the time and circumstances under which

the gun was found, it was found during the execution of the search

warrant and not under circumstances indicating that it was in use

during the middle of a drug transaction.

       After taking these factors into consideration, they do not all

point to the gun being used in furtherance of the drug crime.                     But

they   also   do   not   dispel   the    Government’s   theory       that    it   is


                                        15
reasonable that the gun could have been so used.8             Given that it

was in same room, Milbourne could have grabbed it and put it in the

jacket on his way out of the house for a drug sale.                  Such an

inference is clearly in accord with our holding in Lomax that §

924(c)   requires   the   government      to   present   evidence   that   the

possession of the firearm furthered, advanced, or helped forward a

drug trafficking crime.9    292 F.3d at 705.       In sum, when construing

this evidence in the light most favorable to the Government, as we

must do, a reasonable fact finder could have found beyond a

reasonable doubt that Milbourne’s possession of the gun was in

furtherance of the drug crime.



                                     III.

     For   the   reasons    stated     herein,    we     affirm   Milbourne’s

conviction.

                                                                     AFFIRMED




     8
      Indeed, the court has indicated that the Ceballos-Torres
factors are only a part of our analysis in determining whether a
gun is used in furtherance of a drug crime. See Lomax, 293 F.3d at
705 (noting that the Ceballos-Torres factors may lead a fact finder
to conclude that the necessary nexus between a firearm and a drug
trafficking activity exists but that our analysis is not limited to
these factors alone); see also Krouse, 370 F.3d at 968 (recognizing
limits of factors in certain cases).
     9
      The district court judge correctly instructed the jury on
this definition of a “possession in furtherance.” J.A. 244-45.

                                     16
TRAXLER, Circuit Judge, concurring in the result:

      I fully concur in the majority’s analysis of the constructive

amendment issue, and I concur in result reached by my friends as to

the section 924(c) charge.   I write separately, however, because I

believe that the evidence supporting the section 924(c) conviction,

viewed in the light most favorable to the government, easily is

sufficient to support the jury’s verdict.

      As we have made clear, section 924(c) “requires the government

to present evidence indicating that the possession of a firearm

furthered, advanced, or helped forward a drug trafficking crime.

However, whether the firearm served such a purpose is ultimately a

factual question.”   United States v. Lomax, 293 F.3d 701, 705 (4th

Cir. 2002).

      When making this factual determination, the fact finder
      is free to consider the numerous ways in which a firearm
      might further or advance drug trafficking. For example,
      a gun could provide a defense against someone trying to
      steal drugs or drug profits, or it might lessen the
      chance that a robbery would even be attempted.
      Additionally, a gun might enable a drug trafficker to
      ensure that he collects during a drug deal. And a gun
      could serve as protection in the event that a deal turns
      sour. Or it might prevent a transaction from turning
      sour in the first place. Furthermore, a firearm could
      help a drug trafficker defend his turf by deterring
      others from operating in the same area.

Id.

      In Lomax, this court specified some of the factors that a jury

might rely upon to find that a gun furthered a drug trafficking

crime, such as the nature of the drug activity at issue, the kind


                                 17
of gun, the general accessibility of the gun, and the proximity of

the gun to drugs or drug proceeds.   See id.   This list of factors,

however, is not exhaustive, and we have never required that any

particular number of them must point towards a connection between

the gun and the crime before a conviction could be sustained.

     Applying the Lomax standards to the evidence presented at

trial, I think the evidence was clearly enough to permit the jury

to conclude that Milbourne, an admitted drug dealer, possessed the

gun in furtherance of the drug-trafficking crime alleged in count

two of the indictment.   During the search of the apartment, law

enforcement officers found Milbourne’s jacket in the closet of the

master bedroom that Milbourne shared with his girlfriend.    In the

pocket of the jacket was a plastic bag that contained numerous

small plastic baggies, each of which contained a small quantity of

marijuana.   Under the mattress in that bedroom was a loaded 9-mm

semi-automatic pistol that Milbourne admitted belonged to him and

that he had bought from his drug supplier.*    See United States v.

White, 875 F.2d 427, 433 (4th Cir. 1989) (“[I]t is not unreasonable

to recognize that weapons have become tools of the trade in illegal


     *
      The majority states that the handgun possessed by Milbourne
is a common type of gun, a fact that the majority apparently
believes points away from the conclusion that the gun was possessed
in furtherance of a drug-trafficking crime.      Since there is no
evidence in the record about the ubiquity of 9-mm semi-automatic
weapons, I am not certain of the propriety of this observation.
But if such observations are proper in this case, I would note by
belief that Milbourne’s firearm is the weapon of choice among drug
dealers.

                                18
narcotics   operations.”   (internal   quotation   marks   omitted)).

Milbourne is a convicted felon, which makes it illegal for him to

possess a pistol, and the loaded gun was easily accessible to

anyone who knew where it was hidden.     In my view, this evidence

could easily support a conclusion that Milbourne used the pistol to

protect himself and the drugs he was selling.      The government’s

evidence was thus more than enough to support Milbourne’s section

924(c) conviction.




                                 19
SHEDD, Circuit Judge, concurring:

     I concur with the result reached by Judge Gregory and with

much of his analysis.      However, I believe the issue of the

possession of the firearm “in furtherance of” a federal drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) is not

a close call at all.   We have previously recognized that firearms

are tools of the drug trade, see United States v. Ward, 171 F.3d

188, 195 (4th Cir. 1999); United States v. Burgos, 94 F.3d 849, 886

(4th Cir. 1996) (en banc); United States v. White, 875 F.2d 427,

433 (4th Cir. 1989), and that a jury could reasonably conclude that

a firearm kept near the location of drugs is for the personal

protection of a defendant as a drug dealer or for the protection of

his inventory, see United States v. Lomax, 293 F.3d 701, 705 (4th

Cir. 2002).




                                20
