      Case: 10-2400          Document: 006111178550          Filed: 01/10/2012       Page: 1
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0032n.06

                                           No. 10-2400
                                                                                           FILED
                          UNITED STATES COURT OF APPEALS                              Jan 10, 2012
                               FOR THE SIXTH CIRCUIT
                                                                                LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
v.                                                   )       COURT FOR THE WESTERN
                                                     )       DISTRICT OF MICHIGAN
VINCENT RAYSHAWN CANADA,                             )
                                                     )
       Defendant-Appellant.                          )
                                                     )




       BEFORE: SUHRHEINRICH, SUTTON, and COOK, Circuit Judges.


       PER CURIAM. Vincent Rayshawn Canada pleaded guilty to being a felon in possession

of a firearm and possession of a firearm during and in relation to a drug trafficking crime. On

appeal, he seeks to vacate his guilty plea, arguing that it was taken in violation of Federal Rule of

Criminal Procedure 11. We affirm Canada’s convictions but remand for correction of a clerical error

in the judgment.

       On December 4, 2009, Canada was pulled over by officers of the Grand Rapids, Michigan

Police Department for a traffic stop and was found to be in possession of a .380 caliber handgun, a

small amount of crack cocaine, and approximately $500 in cash. On December 16, 2009, Canada

was charged with possession with intent to distribute crack cocaine, in violation of 21 U.S.C.

§ 841(a), being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and

possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.
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No. 10-2400
United States v. Vincent Canada

§ 924(c)(1)(A). Pursuant to a plea agreement, Canada pleaded guilty to the second and third counts

of the indictment.

        At the plea hearing, Canada initially stated that he had been planning to personally use the

crack cocaine in his possession, which was stored in two plastic baggies in his sock. After the

district court explained that the offense to which Canada was pleading guilty required an intent to

distribute the crack cocaine, however, Canada stated that he planned to sell it. When asked by the

district court to elaborate further, Canada explained that, “if I could have had a sale, I would have

probably sold it, you know. I would have sold it at that particular time.” After extensive discussion

with the parties, the district court concluded that there was a sufficient factual basis for the charge

of possession of a firearm during and in relation to a drug trafficking crime and, without objection

from either party, accepted Canada’s plea. The district court sentenced Canada to consecutive terms

of sixty months of imprisonment on each count, to be followed by three years of supervised release.

        On appeal, Canada argues that the district court failed to establish an adequate factual basis

for his plea to the charge of possession of a firearm during and in relation to a drug trafficking crime,

as required by Rule 11(b)(3), and failed to advise him of any applicable forfeiture, as required by

Rule 11(b)(1)(J). Because Canada did not raise these objections before the district court, we review

for plain error. See United States v. Mobley, 618 F.3d 539, 544 (6th Cir. 2010). To demonstrate

plain error based on an unpreserved Rule 11 violation, “a defendant is obliged to show a reasonable

probability that, but for the error, he would not have entered the plea.” Id. (quoting United States

v. Dominguez Benitez, 542 U.S. 74, 76 (2004)).

        A district court must “determine that there is a factual basis for the plea.” Fed. R. Crim. P.

11(b)(3). A factual basis may be established from a variety of sources, including the defendant’s

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United States v. Vincent Canada

own statements, a statement on the record from the prosecutor, or, where the crime is easily

understood, a reading of the indictment and an admission from the defendant. See Mobley, 618 F.3d

at 545; United States v. McCreary-Redd, 475 F.3d 718, 722 (6th Cir. 2007). In order to establish that

a firearm was used or carried “during and in relation to [a] drug trafficking crime,” the government

must prove that “the firearm furthered the purpose or effect of the crime and that its presence or

involvement was not the result of coincidence.” United States v. Gibbs, 182 F.3d 408, 426 (6th Cir.

1999) (citation omitted). The predicate drug trafficking offense in this case, possession with intent

to distribute crack cocaine, requires proof that Canada knowingly possessed crack cocaine with the

intent to distribute it. See United States v. Salgado, 250 F.3d 438, 447 (6th Cir. 2001).

        Canada, relying heavily on McCreary-Redd, argues that the district court failed to establish

a sufficient factual basis for the intent-to-distribute element. But that case is readily distinguishable.

There, the district court failed to ensure that the defendant understood that his offense required an

intent to distribute and did not discuss the intent-to-distribute element at “any point during the entire

plea proceeding.” McCreary-Redd, 475 F.3d at 725. In addition, the district court relied on the facts

set forth in the plea agreement to establish a factual basis for the plea, which stated only that the

defendant was carrying approximately three grams of crack cocaine that were “individually wrapped

and packaged for resale.” Id. at 723. Because the defendant did not admit that he intended to

distribute the crack cocaine, and because these facts were equally consistent with possession for

personal use, we concluded that reliance on the stipulated facts required “an impermissible inference

of [the defendant’s] intent to distribute.” Id. at 724.

        In this case, by contrast, the district court engaged in an extensive discussion with Canada

regarding the intent-to-distribute element, during which Canada explicitly admitted that he possessed

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No. 10-2400
United States v. Vincent Canada

the requisite intent to distribute. Specifically, Canada stated, “I planned to sell it, sir,” and, “Well,

I had it for use, but, I mean, if I could have had a sale, I would have probably sold it, you know. I

would have sold it at that particular time.” Accordingly, it is irrelevant whether, as Canada argues,

the underlying facts are insufficient, standing alone, to support an inference of an intent to distribute.

There is no need to infer an intent to distribute because, unlike the defendant in McCreary-Redd,

Canada admitted that he intended to distribute the crack cocaine. Cf. id. at 724. The district court

did not err, plainly or otherwise, by relying on this admission to establish the factual basis for

Canada’s plea. See United States v. Moore, 423 F. App’x 495, 500 (6th Cir. 2011).

        Canada also argues that there was an insufficient factual basis to establish that he carried his

firearm “during and in relation to” the drug trafficking offense. Again, however, the case on which

he relies, United States v. Maye, 582 F.3d 622 (6th Cir. 2009), is distinguishable. In Maye, we found

plain error where the district court consistently “expressed a mistaken understanding” of what was

required to establish that a firearm was possessed in furtherance of a drug trafficking crime and

failed to ensure that the defendant understood this element of the offense, and there was insufficient

evidence in the record that the defendant did in fact possess the weapon in furtherance of a drug

trafficking crime. Id. at 630-31 & n.3. In this case, unlike in Maye, the district court properly

instructed Canada on the relevant element, explaining that the government would have to prove that

Canada was carrying the firearm “because of the drug-trafficking crime.” Further, the evidence

showed – and Canada did not dispute – that he was carrying a loaded gun in a holster and crack

cocaine in his sock when he was arrested. These facts, which show that the gun had the potential

to facilitate the predicate drug trafficking offense, are sufficient to satisfy the “during and in relation

to” element. See, e.g., United States v. Combs, 218 F. App’x 483, 485 (6th Cir. 2007) (gun in

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United States v. Vincent Canada

pocket); United States v. Nichols, 184 F. App’x 532, 536-37 (6th Cir. 2006) (gun in car trunk).

Accordingly, no plain error occurred.

       Finally, Canada argues that the district court failed to advise him of “any applicable

forfeiture.” See Fed. R. Crim. P. 11(b)(1)(J). But the indictment in this case did not include a

forfeiture count, and the district court did not order forfeiture as part of Canada’s sentence. Rather,

it appears that the money Canada was carrying when he was arrested – $530 in cash – was

administratively forfeited by the Grand Rapids Police Department. Because forfeiture was not a

consequence of the district court proceeding, this advice was not required. See id.; United States v.

Martinez, 385 F. App’x 594, 596 (7th Cir. 2010). Moreover, there is no evidence that, had Canada

been advised concerning forfeiture, he would not have entered his guilty plea. Accordingly, any

error was not plain. See Mobley, 618 F.3d at 544.

       For these reasons, we reject Canada’s claim that his guilty plea is invalid. We do, however,

remand the case for correction of the judgment, which states that Canada “is adjudicated guilty of

. . . Possession of Firearms in Furtherance of a Drug Trafficking Crime.” The judgment should state

that Canada was convicted of possession of a firearm “during and in relation to” a drug trafficking

crime, the offense with which he was charged and to which he pleaded guilty. See 18 U.S.C.

§ 924(c)(1)(A); United States v. Lloyd, 462 F.3d 510, 513 (6th Cir. 2006) (noting that § 924(c)

“creates two distinct criminal offenses”). As we have previously held, this is “a harmless, clerical

error that may be corrected by the district court at any time ‘[a]fter giving any notice it considers

appropriate.’” United States v. Burgess, 209 F. App’x 497, 501 (6th Cir. 2006) (quoting Fed. R.

Crim. P. 36).




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       Accordingly, we affirm Canada’s convictions but remand the case to the district court for

correction of the judgment.




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