                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                     No. 04-15204                          APRIL 21, 2006
                               ________________________                  THOMAS K. KAHN
                                                                              CLERK
                           D. C. Docket No. 03-00373-CR-B-S

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                            versus

MARIO BUSTOS,
a.k.a. Mario Busto,

                                                               Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                            _________________________

                                       (April 21, 2006)

Before BIRCH, CARNES and BRUNETTI *, Circuit Judges.

BIRCH, Circuit Judge:

       *
         Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
        Mario Bustos appeals his conviction for carrying a firearm during and in

relation to a drug trafficking crime. We find that the evidence was sufficient to

sustain his conviction and that the indictment was not constructively amended by

the jury instruction. We, therefore, AFFIRM.

                                 I. BACKGROUND

        Bustos was indicted for possession with intent to distribute a controlled

substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count One), and

carrying a firearm during and in relation to a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A) (Count Two). He pled not guilty and was tried before a

jury.

        At trial, the testimony revealed that an undercover officer and a confidential

informant (“CI”) met with Bustos in a hotel room in order to purchase drugs. The

undercover officer testified that, before the transaction took place, Bustos offered

him a bottled soft drink “that had a pop top.” R5 at 86. Bustos reached into the

drawer of a nightstand, pulled out a handgun and unloaded it. Id. at 86, 99. He

then used the trigger guard of the gun to remove the bottle cap, placed the gun on

the dresser, and handed the soft drink to the officer. Bustos then sold the officer

and the CI marijuana.




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      A police officer testified that, in drug deals, firearms were used for

protection or to “rip off” others. Id. at 116-17. A translator with the police

department testified that, after his arrest, Bustos gave a statement to police. In that

statement, Bustos stated that someone named Juan or Jose offered to pay for his

hotel room if he would keep some marijuana. Bustos told the police that, when he

was given the marijuana, he was also given a gun for his protection. Id. at 129.

      At the close of the government’s evidence, Bustos moved for a judgment of

acquittal, which the district court denied. He then changed his plea to guilty as to

Count One. Bustos took the stand in his own defense and testified that Juan, the

man who offered to put him up in a hotel room in exchange for Bustos taking care

of his marijuana, brought the gun to the hotel room. Id. at 151. Bustos further

testified that the gun was unloaded on the evening of the arrest. Id. at 151-52.

Bustos explained that he removed the unloaded gun from the nightstand and used it

to open the soft drinks for the CI and the undercover officer. Id. at 156-57. He

stated that he never used the gun for anything other than opening soft drinks and

that the gun never left the hotel room. On cross-examination, Bustos explained

that Juan told him that the gun could be useful for defending himself, but Bustos

told Juan that he did not need the gun.




                                           3
      Bustos renewed his motion for acquittal, which the district court denied.

The district court then instructed the jury that the government had to prove the

following elements beyond a reasonable doubt for Count Two:

      First:  That the defendant committed the drug trafficking crime
              charged in Count One of the Indictment;
      Second: That the defendant carried a firearm;
      Third: That the carrying of the firearm was during and in relation to
               the crime charged in Count One of the Indictment; and
      Fourth: That the defendant carried the firearm knowingly.

R1-30 at 9. The court then stated that:

              The phrase “during and in relation to” the commission of an
      offense means that there must be a connection between the defendant,
      the firearm and the drug trafficking crime so that the firearm
      facilitated the crime or had the potential of facilitating the crime by
      serving some important function or purpose of the criminal activity
      such as enforcement or protection.
              To carry a firearm means either to have a firearm on or around
      one’s person or to transport, convey or possess a firearm in such a
      way that it is available for immediate use if one so desires.
              . . . It is enough that a firearm was present at the drug
      trafficking scene, that the firearm could have been used to protect or
      facilitate the operation, and the presence of the firearm was in some
      way connected with the drug trafficking offense.
              Mere presence of a firearm at the scene is not enough to find
      that defendant carried the firearm during and in relation to a drug
      trafficking crime, because the firearm’s presence may be coincidental
      or entirely unrelated to the underlying crime. Some factors that may
      help in determining whether defendant carried the firearm during and
      in relation to a drug trafficking offense include, but are not limited to:
              a. the type of drug activity that is being conducted;
              b. the accessibility of the firearm;
              c. the type of weapon;
              d. proximity to drugs or drug profits; and

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             e. the time and circumstances under which the gun is
             found.
      ....
            A person who has direct physical control of something on or
      around his person is then in actual possession of it.

Id. at 10-12 (emphasis in orginal).

      During deliberations, the jury submitted several questions to the district

court judge. In one of the questions, the jurors requested “clarification of the . . .

(term) mere presence of a firearm.” R1-24; R6 at 229-30. The district court

answered the question by re-reading a portion of the jury instructions and provided

examples of situations were “a firearm’s presence might be coincidental or entirely

unrelated to the underlying offense” such as “where a drug trafficking crime takes

place in a home with a display case of hunting rifles . . . or in a gun shop.” Id. at

230-31. The jury then asked “Does how he used the firearm determine how we

should make our judg[]ment or do we base it on possession alon[e]?” R1-25. The

court initially responded that “it’s the purpose or the reason why the firearm was in

there. It’s not actually how he used it.” R6 at 234-35. The district court explained

that a defendant could be found guilty of carrying a firearm during a drug

trafficking offense “even if the gun [was] never seen” or was never taken out of a

car, if the defendant had carried the gun in the car with him and if the jury believed




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that the gun was there to protect the drugs or money. Id. at 235. The district court

then expanded the answer as follows:

             The firearm must have some purpose or effect with respect to
      the drug trafficking crime. It’s presence or involvement cannot be the
      result of accident or coincidence. The gun at least must facilitate or
      have the potential of facilitating the drug trafficking offense.
             You should focus on the purpose of the gun being in the room.
      For example, an armed bank robber who carries his gun during the
      commission of the bank robbery and uses his gun to open a soda drink
      while the bank teller is gathering the loot has used the gun in a non-
      robbery fashion at some point in time during the robbery. The
      temporary, non-robbery use of the gun under the law does not mean
      that the robber did not carry the gun in a crime of violence.
             There are four elements to Count Two, and I am going to read
      them to you now. . . .
             ....
             Of course, element one is established. If you find beyond a
      reasonable doubt that elements two and four have been established,
      two being that the defendant carried the firearm and four that he
      carried the firearm knowingly, and if you find beyond a reasonable
      doubt that the gun was there to provide protection for the [drugs], that
      is to avoid the drugs being ripped off or to provide protection for the
      money from drug deals, then you may find that the firearm was
      carried during and in relation to the crime charged in Count One, even
      though the only use of the gun, according to the testimony, was for the
      defendant to open a soda can.

Id. at 244-46. Neither the government nor Bustos objected to this response.

      The jury found Bustos guilty of Count Two. Bustos filed a motion for new

trial or, in the alternative, for a judgment of acquittal based on the district court’s

instruction to the jury as to “possession” of a firearm and insufficient evidence that

he knowingly carried the gun. The district court denied the motion, finding that

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the instructions taken as a whole accurately reflected the law and conformed to our

proposed jury instructions. The court further found that Bustos’s handling of the

gun supported the jury’s verdict that he carried the firearm. The district court then

sentenced Bustos to serve consecutive prison terms of 15 months on Count One

and 60 months on Count Two.

      Bustos raises two arguments on appeal. First, he contends that the evidence

was insufficient to support a guilty verdict for carrying a firearm during and in

relation to a drug trafficking offense. Second, he argues that the district court erred

by constructively amending the indictment when it instructed the jury that finding

that Bustos in possession of the firearm was sufficient to find him guilty of

carrying the firearm.

                                 II. DISCUSSION

A. Sufficiency of the Evidence

      Bustos argues that the evidence that he merely opened the soft drink bottle

was insufficient to show that he “carried” a firearm during the commission of a

drug trafficking offense because there was no evidence that he transported or

moved the weapon onto the premises, carried it on his person, or used it in relation

to the drug offense.




                                           7
      We review sufficiency of the evidence de novo but “view the evidence in the

light most favorable to the government, with all reasonable inferences and

credibility choices made in the government’s favor.” United States v. Martinez, 83

F.3d 371, 373-74 (11th Cir. 1996) (internal citation omitted). We review the denial

of a motion for new trial for abuse of discretion. United States v. Anderson, 326

F.3d 1319, 1326 (11th Cir. 2003).

      “[A]ny person who, during and in relation to any crime of violence or drug

trafficking crime . . . uses or carries a firearm” shall be sentenced to a minimum of

term of imprisonment for five years. 18 U.S.C. § 924(c)(1)(A)(i). Because the

word “carry” inherently involves “some degree of physical transportation or

movement,” “we consistently have held that the government must show some

actual transporting of the firearm during and in relation to the offense” for a

“carrying” conviction under § 924(c). United States v. Mount, 161 F.3d 675, 679

(11th Cir. 1998). “[T]he discovery of an unloaded firearm near drugs in a home

where drugs were sold is, standing alone,” insufficient to support a § 924(c)

conviction for carrying a firearm. Id. at 680. We observed that our sister circuits

have “sustained ‘carry’ convictions only where there was some evidence

suggesting that the defendant had actually moved the firearm in relation to his drug

offenses.” Id. The carrying element of § 924(c) is “clearly indicated” where the



                                           8
defendant “carried a shoe-box that contained both the gun and the drugs in his

hands.” United States v. Timmons, 283 F.3d 1246, 1250 (11th Cir. 2002).

      In this case, Bustos actually moved the weapon during a drug transaction.

See Mount, 161 F.3d at 679. Because Bustos pulled a gun out of a drawer and

handled it during the drug transaction and because there was testimony that the gun

was there to provide protection during the transaction, the evidence was sufficient

to support the jury’s verdict finding that Bustos had “carried” the firearm during

and in relation to the drug transaction.

B. Constructive Amendment

      We review “whether the district court misstated the law when instructing the

jury or misled the jury to the prejudice of the defendant” de novo. Anderson, 326

F.3d at 1326. District courts are generally “granted broad discretion to formulate

jury instructions as long as the jury charge as a whole correctly applies the law and

states the facts.” Anderson, 326 F.3d at 1330 (citation omitted). We “will not

reverse a conviction on the basis of a jury charge unless the issues of law were

presented inaccurately, or the charge improperly guided the jury in a substantial

way as to violate due process.” Id. at 1331 (citation and internal punctuation

omitted).




                                           9
      An indictment is constructively amended when the trial evidence and jury

instructions “so modify the elements of the offense charged that the defendant may

have been convicted on a ground not alleged by the . . . indictment.” United States

v. Davis, 679 F.2d 845, 851 (11th Cir. 1982) (citation and internal punctuation

omitted). A constructive amendment requires reversal. Id. “A variance results

when the terms of the indictment are unaltered but the evidence offered at trial

proves facts materially different from those alleged in the indictment. A variance

mandates reversal only when it substantially prejudiced a defendant’s rights.” Id.

(internal citations omitted). A finding that the district court erred in instructing the

jury, however, is not enough to warrant a reversal; a defendant is entitled to a new

trial only if we find that “a reasonable likelihood exists that the jury applied the

[erroneous] instruction in an improper manner.” United States v. Leonard, 138

F.3d 906, 910 (11th Cir. 1998).

      The indictment charged Bustos with “carrying” a firearm rather than

possession of a firearm under § 924(c)(1)(A). The district court’s original

instructions stated that “[t]o carry a firearm means either to have a firearm on one’s

person or to transport, convey or possess a firearm in such a way that it is available

for immediate use,” and then provided a definition of possession. See R1-30 at 10

(emphasis in original). The evidence was sufficient to show that Bustos “carried”



                                           10
the firearm by handling it during the drug transaction. Consequently, neither a

constructive amendment nor variance occurred because the trial evidence did not

“modify the elements of the offense charged that the defendant may have been

convicted on a ground not alleged by the indictment” or prove “facts materially

different from those alleged in the indictment.” See Davis, 679 F.2d at 851.

      Further, the district court’s jury instructions as a whole correctly applied the

law and stated the facts–even though the term “possess” was included in the

definition of “carry”–and the district court used the term “carry” rather than

“possess” and reiterated the elements of the crime, including that the defendant

carried the firearm, in its answer to the jury’s question. Further, the district court

stated that mere presence of the firearm at the scene was not enough, and the

“armed bank robber” illustration correctly stated the law by explaining that the gun

must have been knowingly carried during and in relation to the crime charged.

The district court, therefore, did not abuse its discretion in denying Bustos’s

motion for new trial based on constructive amendment of the indictment.

                                 III. CONCLUSION

      The evidence was sufficient to support the jury’s verdict on Count Two

because Bustos pulled a pistol out of a drawer and handled it during the drug

transaction. The district court did not constructively amend the indictment by



                                           11
including the term “possession” in its instructions to the jury because the

instructions as a whole correctly applied the law and stated the facts. We,

therefore, affirm.

      AFFIRMED.




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