                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT               September 19, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-50999


     UNITED STATES OF AMERICA

                           Plaintiff - Appellee

     v.

     ERIK CHRISTIAN PINKSTON

                           Defendant - Appellant


           Appeal from the United States District Court
                 for the Western District of Texas
                      No. SA-01-CR-399-ALL-EP


Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN,*

District Judge.

PER CURIAM:**

     After a jury trial, Defendant Erik Christian Pinkston was

convicted of bank robbery under 18 U.S.C. § 2113(a); armed bank

robbery under 18 U.S.C. § 2113(b) and (d); and using, carrying,

and brandishing a firearm in furtherance of a crime of violence

under 18 U.S.C. § 924(c)(1)(A)(ii).   The district court sentenced


     *
          District Judge for the Northern District of Texas,
sitting by designation.
     **
          Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.

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Pinkston to the seven-year mandatory minimum for the third crime,

pursuant to 18 U.S.C. § 924(c)(1)(A)(ii).    Pinkston appeals this

aspect of his sentence, claiming that the judge’s instructions to

the jury improperly conflated the meaning of “brandishing” a

firearm, which carries a seven-year penalty, with the meaning of

“using” a firearm, which carries only a five-year penalty under

the statute.

     We review jury instructions under an abuse of discretion

standard, affording district courts “substantial latitude,” and

upholding instructions that, when viewed as a whole, accurately

reflect the law and issues in the case.     United States v. Young,

282 F.3d 349, 353 (5th Cir. 2002).   Here, the district court

instructed the jury that a conviction under § 924(c)(1)(A) is

proper when the defendant “used” a firearm in his crime:

     [T]he government must prove that the defendant actively
     employed the firearm in commission of [a crime]. . . .
     “Active employment” may include brandishing,
     displaying, referring to, bartering, striking with,
     firing, or attempting to fire the firearm. Use is more
     than mere possession of a firearm or having it
     available during the crime of violence.

This instruction carefully tracks the Supreme Court’s language in

Bailey v. United States, 516 U.S. 137, 148 (1995); therefore, it

was not improper.

     In addition, the district court submitted the question of

whether Pinkston “brandished” a firearm during this offense as a




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special issue to the jury,1 instructing:

     The term “brandish” means, with respect to a firearm,
     to display all or part of the firearm, or otherwise
     make the presence of the firearm known to another
     person in order to intimidate that person, regardless
     of whether the firearm is directly visible to that
     person.

This language mirrors the statutory definition for “brandish”

found in 18 U.S.C. § 924(c)(4).

     Nevertheless, Pinkston claims that the latter instruction

was too broad, because it would encompass every situation in

which the defendant has “used” a firearm under § 924(c)(1)(A).

We disagree.   A defendant who barters a gun while committing a

predicate crime has “used” a gun under § 924(c)(1)(A), see Smith

v. United States, 508 U.S. 223 (1993), yet he would not qualify

as “brandishing” his weapon under the definition in § 924(c)(4)

because he did not display the firearm “in order to intimidate”

another.   Thus, it is not true, as Pinkston asserts, that the

term “brandish” has become mere surplusage by virtue of the

statutory definition Congress created.     We therefore conclude

that the district court did not abuse its discretion with respect

to this jury instruction.

     The defendant’s conviction and sentence are AFFIRMED.



     1
          Pinkston’s trial took place before the Supreme Court
announced, in Harris v. United States, that whether a defendant
“brandished” a firearm under § 924(c)(1)(A)(ii) is a sentencing
factor that may be decided by a judge, rather than a jury. 536
U.S. 545, 568-69 (2002).

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