                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 10-3726
                                   _______________

                           UNITED STATES OF AMERICA

                                           v.

                              ANTWAN HORNBUCKLE,
                                           Appellant
                                 _______________

                    On Appeal from the United States District Court
                              For the District of Delaware
                     (D.C. Criminal Action No. 1:09-cr-00050-1)
                     District Judge: Honorable Leonard P. Stark
                                   _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 26, 2011
                                 _______________

    Before: SLOVITER and GREENAWAY, JR., Circuit Judges, and POLLAK, District
                                 Judge*

                             (Opinion filed May 12, 2011)
                                  _______________

                                      OPINION
                                   _______________

POLLAK, District Judge

       Antwan Hornbuckle appeals his conviction and sentence, arguing that he was not


*
 Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
properly advised as to the nature of his offense before pleading guilty. We hold that the

District Judge did not plainly err when explaining the nature of Hornbuckle‘s offense,

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18

U.S.C. § 924(c). Accordingly, we will affirm Hornbuckle‘s judgment of conviction and

sentence.

                                             I.

       Because we write primarily for the parties, who are familiar with this case, we

address only the facts and procedural history relevant to resolution of the issues raised in

this appeal.

       Hornbuckle‘s residence was the subject of a police raid in early 2009. At the start

of the raid, Hornbuckle emerged from his bedroom and was taken into custody. A search

of his person uncovered a plastic bag containing 15 grams of crack cocaine. A search of

the bedroom from which he emerged revealed, among other drug trafficking

paraphernalia, a blue plastic tub that contained several plastic bags containing 420 grams

of crack cocaine as well as a loaded handgun. The plastic bags of crack cocaine in the

tub were identical to the bag found on Hornbuckle. Hornbuckle maintains that the

handgun and drugs in the tub were being held for another person (whom the Government

was later made aware of through Hornbuckle‘s cooperation).

       On December 17, 2009, Hornbuckle waived indictment and pled guilty to a two-

count information charging (1) possession with intent to distribute 5 grams or more of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A), and (2) possession of a

firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

                                              2
§ 924(c)(1)(A). At this change of plea hearing, the District Court instructed Hornbuckle,

pursuant to Federal Rule of Criminal Procedure 11(b)(1)(G), as to the ―nature of each

charge to which [Hornbuckle] [wa]s pleading‖ guilty. The District Court and Hornbuckle

discussed aspects of the firearms charge, and Hornbuckle did not object to the District

Court‘s description of the charges at that time.

       Prior to sentencing, Hornbuckle filed a pro se motion to withdraw his guilty plea.

Two weeks later, and acting through counsel, Hornbuckle withdrew his motion to

withdraw the guilty plea. The District Court eventually sentenced Hornbuckle to 60

months‘ imprisonment for the drug possession count, plus a consecutive sentence of 60

months‘ imprisonment for the firearm count. Hornbuckle timely appealed.1

                                             II.

                                             A.

       In this case, Hornbuckle asks us to determine whether the District Court fulfilled

its duty under Federal Rule of Criminal Procedure 11(b)(1)(G) to explain the charge to

which Hornbuckle was pleading guilty and to ensure that he understood the charge.2 The

relevant portion of the rule reads as follows:

       Before the court accepts a plea of guilty . . . the court must inform the
       defendant of, and determine that the defendant understands, . . . the nature
       of each charge to which the defendant is pleading[.]

Fed. R. Crim. P. 11(b)(1)(G). Because Hornbuckle did not object to the alleged Rule 11


1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction under 28 U.S.C. § 1291.
2
  In his appeal, Hornbuckle does not appear to dispute that the District Court properly
found a factual basis to support a conviction against him pursuant to Rule 11(b)(3).
                                                 3
colloquy error during the change of plea hearing, we review the District Court‘s judgment

of conviction and sentence for plain error. United States v. Dixon, 308 F.3d 229, 233 (3d

Cir. 2002). ―The burden is on the defendant to satisfy a four-part test in order to obtain

plain error reversal of a criminal conviction. The defendant must show that: (1) an error

was committed; (2) the error was plain, that is, clear and obvious; . . . (3) the error

affected the defendant‘s substantial rights; [and (4)] the error . . . seriously affects the

fairness, integrity, or public reputation of judicial proceedings.‖ Id. at 233–34 (internal

quotation marks omitted). Even if all four parts are met, we retain discretion as to

whether to order a correction of the error. Id.

                                               B.

       Hornbuckle pled guilty to possession of a firearm in furtherance of a drug

trafficking crime in violation of 18 U.S.C. § 924(c). ―Under 924(c), the ‗mere presence‘

of a gun is not enough. ‗What is instead required is evidence more specific to the

particular defendant, showing that his or her possession actually furthered the drug

trafficking offense.‘‖ United States v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004)

(quoting United States v. Ceballos-Torres, 218 F.3d 409, 414 (5th Cir. 2000)). In other

words, ―the evidence must demonstrate that possession of the firearm advanced or helped

forward a drug trafficking crime.‖ Id.

       Under Rule 11, a court need not give ―a litany or other ritual‖ that would exalt

―ceremony . . . over substance.‖ United States v. Cefaratti, 221 F.3d 502, 508 (3d Cir.

2000). Instead, we ―look to the totality of the circumstances to determine whether a

defendant was informed of the nature of the charges against him, considering factors such

                                               4
as the complexity of the charge, the age, intelligence, and education of the defendant, and

whether the defendant was represented by counsel.‖ Id. Rule 11 itself provides that ―[a]

variance from the requirements of this rule is harmless error if it does not affect

substantial rights.‖ Fed. R. Crim. P. 11(h). Thus, a court may reject such challenges

―where the record plainly shows that the defendant understood the nature of the charges

despite a flawed inquiry by the court.‖ Cefaratti, 221 F.3d at 508 (internal quotation

marks omitted).

                                             C.

       Hornbuckle‘s claim of error is based on the following exchanges during the

change of plea hearing and the sentencing hearing. At the change of plea hearing,

Hornbuckle first inquired about the firearm charge:

       THE COURT: Now in Count II, it says in furtherance of drug trafficking
       for which you may be prosecuted, that you had—that the crime is knowing
       Possession with Intent to Distribute five grams or more, which is Count I,
       that you had a firearm with you, it‘s a Kel-Tec model P11 handgun. Now,
       when you were possessing which you admit to having [done] in Count I,
       were you in possession of a Kel-Tec .9mm handgun?

       THE DEFENDANT: Your Honor, I wasn‘t in actual physical possession.
       The .9mm was located in my bedroom area.

       THE COURT: It was in the area where you had the drugs?

       THE DEFENDANT: Yes.

       THE COURT: Now, I think what you‘re telling me is that you want me to
       understand that although it was in there and you admit to the drugs being
       yours, that was probably someone else‘s gun?

       THE DEFENDANT: Yes.

       THE COURT: But you possessed it by it being in your presence and being
       available to you? Do you understand that?
                                              5
       THE DEFENDANT: Yes, sir.

       THE COURT: What I‘m saying is, you can be convicted of possession
       because it was your area—in the area of where you say it was, in the area of
       where you kept your drugs. You could be what we call in possession of the
       gun even though you weren‘t the owner of it?

       THE DEFENDANT: Yes.

       THE COURT: Is that what you‘re trying to explain to me?

       THE DEFENDANT: Yes, sir.

       ....

       THE COURT: . . . Based on the responses you‘ve given me, I find again
       that . . . you fully understand the charges . . . and that there‘s a basis in fact
       for you to plead guilty because you‘ve admitted your guilt and the facts that
       support a guilty verdict and you have accepted with modification as
       presented by [Hornbuckle‘s counsel], the government‘s proffer of evidence,
       and for all these reasons I‘m going [to] accept your pleas and adjudge you
       guilty of Counts I and II.

App. 34–36, 44. At sentencing, Hornbuckle expressed some confusion over the § 924(c)

charge. First, he had his counsel explain his intentions with the firearm:

       [Hornbuckle‘s counsel]: . . . In addition, your Honor, Mr. Hornbuckle
       maintains he understands it was wrong for him to even agree to hold the
       drugs and gun for someone else. . . . He wants me to express to the Court
       that he had no intention of ever using the gun for any purpose. He actually
       is the one that unloaded the gun because he didn‘t want a loaded firearm in
       the house; and although he did plead guilty to the 924(c) charge, your
       Honor, the amount of time he was facing, he was facing a 15-year
       mandatory minimum prior to accepting the deal in this and I think he didn‘t
       want to take, you know, his chances at trial and try to challenge the
       evidence, but he just wants the Court to know he never possessed a firearm
       in the past, and he had no intention of doing—of using the firearm in any
       way.

App. 54. Later, Hornbuckle addressed the Court prior to being sentenced, expressing

discontent with the § 924(c) charge:


                                               6
       THE DEFENDANT: . . . Another thing I would like to bring[] up, your
       Honor, is the 924(c) gun charge—excuse me, I‘m a little nervous—I have
       an issue with that your Honor. And even at the plea hearing, I really was
       uncomfortable with signing to it just because of the elements. I just had
       mere knowledge of the gun and the drugs. That was never my intention to
       use the gun to further any drug transactions or to harm anybody or anything
       like that. The government is clearly aware of who these items belong to.
       And I‘m not happy. That wasn‘t—I didn‘t want to plead to that.

       ....

       THE DEFENDANT: Your Honor, I mean no disrespect to the Court.
       Again, I have a problem with the 924(c) charge. There was no evidence
       stating, saying that I actually possessed this gun in furtherance with a drug
       trafficking crime. I don‘t—I don‘t understand how I‘m even being charged
       with this.

App. 58, 61.

       Hornbuckle‘s appeal is based almost exclusively on the decision in United States

v. Maye, 582 F.3d 622 (6th Cir. 2009). In Maye, the defendant argued both that the

government had failed to provide a factual basis for the § 924(c) (an argument which

Hornbuckle does not raise) and that the district court failed to ensure that he understood

the nature of the § 924(c) charge to which he pled guilty. Id. at 626–27. Because the

defendant had failed to object before the district court, the Court of Appeals for the Sixth

Circuit reviewed for plain error. Although the court found plain error under the facts it

confronted, we find Maye distinguishable.

       The defendant and the district judge in Maye were both ―confused as to what

exactly was required to establish guilt of a section 924(c) possession-in-furtherance

charge.‖ Id. at 627. The court of appeals held that both the defendant and the district

judge ―did not believe that a specific nexus between the gun and the [drug trafficking]


                                             7
crime charge need be shown but, rather, that the government need show only that the

defendant possessed a firearm and that the firearm was located somewhere near the

illegal drug transaction.‖ Id. (internal quotation marks omitted) (emphasis added). At

one point during the sentencing hearing, at which the defendant expressed his continued

confusion with the § 924(c) charge,3 the district court went as far as to say: ―The 924(c)

charge charged you with possession of a firearm in furtherance of a drug trafficking

crime. . . . You had it, and that was suf[f]icient.‖ Id. at 628 (emphasis in original). The

court of appeals held this to be plain error because ―the district court expressed a

mistaken understanding that a section 924(c) conviction . . . could be established simply

by evidence that a gun was present on the premises where a drug sale occurred.‖ Id. at

630. Compounding the error, ―the prosecution never identified evidence that would meet

[the] ‗in furtherance‘ standard,‖ thereby failing to ensure that there was a factual basis for

the plea. Id.

       Here, by contrast, the District Court never said that all the government needed to

prove was mere possession of a firearm along with drugs. Moreover, the record reflects

that Hornbuckle‘s confusion was not with the meaning of ―in furtherance,‖ but with two

separate issues: (1) the meaning of constructive possession, App. 35; and (2) his (lack of)

intent to use the firearm in any way, App. 54, 58, 61. Neither of these issues

demonstrates a lack of understanding of the ―in furtherance‖ element of § 924(c) in the

3
  The defendant‘s confusion in Maye is reflected in statements such as: (1) ―I was kind of
confused on one of the charges I was charged with, which is a 924(c)‖; (2) ―I think I was
just under the impression that I was just being charged for having a gun period, point
blank‖; and (3) ―I was guilty because I had—I just had the gun period, point blank.‖ 582
F.3d at 628–29.
                                              8
same manner as the Maye case.

       On the issue of constructive possession, Hornbuckle‘s concern was that, although

the gun was located in his bedroom, it wasn‘t in his ―actual physical possession.‖ Close

scrutiny of the District Court colloquy demonstrates that the focus of the quoted

exchange was on the meaning of ―possession‖ and not the meaning of the ―in

furtherance‖ element. The District Court took care to explain that, even if it was

someone else‘s gun, because it was in his presence and available to him, Hornbuckle did

possess it. Hornbuckle indicated that he understood the District Court‘s explanation for

how he could possess the gun without owning it. He did not inquire as to the ―in

furtherance‖ element at that time or indicate that he did not understand it. At worst, the

District Court made an omission by not affirmatively explaining ―in furtherance‖ and

never told Hornbuckle that mere possession was sufficient to satisfy § 924(c)—a far cry

from the district court in Maye, which made an affirmative misstatement of the ―in

furtherance‖ element and represented that mere possession was sufficient.

       On the issue of intent, Hornbuckle acquiesced at the change of plea hearing in the

government‘s articulation of the evidence that could be produced at a trial, including

(among other things) a ―DEA agent [who] would also testify regarding the manner in

which drug-traffickers commonly possess handguns in order to protect illegal drugs and

drug proceeds.‖ App. 37–38 (emphasis added). The District Court continued the

colloquy by explaining all of the rights Hornbuckle would give up by pleading guilty.

Afterwards, when Hornbuckle was asked if he had any other questions, he replied that he

did not. App. 43. His attorney represented that he, too, was not aware of anything else

                                             9
the District Court should ask. Id. The District Court was thus satisfied that (a)

Hornbuckle fully understood the charges; (b) he fully understood the consequences; (c)

there was a factual basis for the plea, and (d) he was pleading guilty knowingly and

voluntarily. App. 44.

       Throughout the entire sentencing colloquy, Hornbuckle never claimed that he did

not understand the nature of the § 924(c) charge at the time of the plea; he only expressed

bewilderment as to factual basis. App. 58, 61. The fact that Hornbuckle argued so

strenuously at sentencing that he lacked any intent ―to use the gun to further any drug

transactions‖ indicates that he did, in fact, understand what ―in furtherance‖ meant. His

―problem with the 924(c) charge‖ was not with the meaning of ―in furtherance,‖ but

whether he in fact had the intent to further a drug transaction. Nor did Hornbuckle say at

sentencing that he did not, at the time of his guilty plea, understand the meaning of ―in

furtherance.‖ His stated concern was that the government wanted to ―us[e] the gun

charge to hold it over the top of my head.‖ App. 61. His assertion at sentencing that he

was ―uncomfortable‖ at the plea hearing about ―signing to [the § 924(c) charge] because

of the elements‖ is itself suggestive that Hornbuckle did understand the difference

between possession and possession in furtherance. App 58.

       We, like the District Court, are satisfied that Hornbuckle ―fully underst[oo]d the

charges.‖ App. 44. We thus do not find that the District Court committed plain error.

                                            III.

       For the foregoing reasons, we will affirm the judgment of conviction and sentence

of the District Court.

                                             10
