                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4962


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

CARLOS JOSE TREJO    RUIZ,    a/k/a   Carlos   Trejo,   a/k/a   Nika,
a/k/a Miqueloyo,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:10-
cr-00472-RWT-3)


Argued:   December 12, 2013               Decided:      January 10, 2014


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the majority
opinion, in which Judge Duncan joined.     Judge Davis wrote a
dissenting opinion.


ARGUED:   Anthony  Douglas  Martin,   ANTHONY  D.   MARTIN,  PC,
Greenbelt, Maryland, for Appellant. Sujit Raman, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.    ON
BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, Christen A. Sproule, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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SHEDD, Circuit Judge:

      A federal jury convicted Carlos Jose Trejo Ruiz (“Trejo”)

on five criminal charges related to a drug conspiracy. In this

appeal,     he       challenges         his       conviction        and      mandatory       30-year

sentence        on    Count       4,    which         charged     him       with    possessing       a

machinegun during and in relation to a drug trafficking offense.

See 18 U.S.C. § 924(c)(1)(B)(ii). We affirm.

      In    pertinent            part,       18       U.S.C.     § 924(c)          prohibits       the

possession of a firearm in furtherance of a drug trafficking

crime.     If        the   firearm       is       a       machinegun,        § 924(c)(1)(B)(ii)

requires    a        30-year      mandatory           sentence.       The    term    “machinegun”

means “any weapon which shoots, is designed to shoot, or can be

readily restored to shoot, automatically more than one shot,

without manual reloading, by a single function of the trigger.”

26 U.S.C. § 5845(b). In a prosecution under § 924(c)(1)(B)(ii),

the   government           must    prove       beyond        a   reasonable         doubt     as    an

element of the offense that the firearm is a machinegun. See

United States v. O’Brien, 560 U.S. 218 (2010).

      Generally,           the     government             presented         evidence    at     trial

tending to establish that in 2009 and 2010, Trejo conspired with

others     to    distribute            and    possess        with     intent       to   distribute

cocaine     and       cocaine      base,       and        that   in     furtherance       of    this

conspiracy, he sold a firearm to a co-conspirator in exchange



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for $800-$1,000 worth of cocaine. 1 Additionally, the government

presented    the   testimony   of     an       ATF   agent     in   which   the    agent

opined, as an expert witness, that the firearm at issue “is a

machine gun as defined in the National Firearms Act because it’s

capable of firing more than one round of ammunition with the

single functioning trigger.” J.A. 114. The agent also testified

that the firearm had “Auto” inscribed on its side next to a

switch, which, when engaged, allowed the firearm to fire three

shots automatically per trigger pull.

      The district court instructed the jury that in order to

convict Trejo on Count 4, it had to find beyond a reasonable

doubt (among other things) that the firearm was a machinegun.

The jury specifically made this finding. Viewing the evidence in

the light most favorable to the government, and in accord with

the   jury   instructions,      the        evidence      is     sufficient        for    a

reasonable jury to conclude that Trejo knowingly possessed the

machinegun in furtherance of the drug conspiracy.

      Trejo argues, however, that his conviction on Count 4 must

be set aside because the jury was not required to find beyond a

reasonable doubt that he knew that the firearm was a machinegun.

Trejo did not object to the jury instructions, which omitted a


      1
        Trejo      testified   at   trial,           denying    that   he   sold        the
firearm.



                                           4
charge   that    the    government     bore   the     burden   of   proving   such

knowledge. We therefore review this argument for plain error.

See Fed.R.Crim.P. 52(b); United States v. McLamb, 985 F.2d 1284,

1293 (4th Cir. 1993).

      Under the plain-error standard of review, our “authority to

remedy [an] error . . . is strictly circumscribed.” Puckett v.

United States, 556 U.S. 129, 134 (2009). In our discretion, we

may   correct    an     error    not   raised    at    trial   only   where    the

appellant demonstrates: (1) there is in fact an error; (2) the

error is clear or obvious, rather than subject to reasonable

dispute;   (3)    the    error    affected      the   appellant’s     substantial

rights, which in the ordinary case means it affected the outcome

of the district court proceedings; and (4) the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings. United States v. Marcus, 560 U.S. 258, 262 (2010).

The burden of establishing entitlement to relief for plain error

is on the appellant, United States v. Dominguez Benitez, 542

U.S. 74, 82 (2004), and “[m]eeting all four prongs is difficult,

as it should be,” Puckett, 556 U.S. at 135 (internal punctuation

and citation omitted).

      For purposes of plain-error review, an error is “plain” if

it is “clear” or “obvious.” United States v. Olano, 507 U.S.

725, 734 (1993). Our cases thus hold that an error is plain if

(1) the explicit language of a statute or rule resolves the

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question, or (2) at the time of appellate consideration, the

settled law of the Supreme Court or this Court establishes that

an error has occurred. See United States v. Carthorne, 726 F.3d

503, 516 (4th Cir. 2013); United States v. Beasley, 495 F.3d

142, 149 (4th Cir. 2007). In the absence of a clear statutory or

rule directive, and where neither the Supreme Court nor this

Court have spoken directly on a legal issue, “the issue has not

been resolved plainly,” United States v. Wynn, 684 F.3d 473, 480

(4th Cir. 2012) (emphasis in original), and a district court

does       not   commit    plain    error      by      acting   in     accord    with    the

reasoning of another federal circuit court, see United States v.

Strieper, 666 F.3d 288, 295 (4th Cir. 2012).

       Trejo      cites     no     statute        or    rule    mandating        that    the

government       must     prove    that   a    defendant        knew    of   a   firearm’s

automatic        capabilities        in       order      to     be     convicted        under

§ 924(c)(1)(B)(ii).          Instead,     relying        primarily      on   O’Brien     and

United States v. Staples, 511 U.S. 600 (1994), Trejo contends

that such a requirement is implicit. Even assuming that Trejo is

correct, 2 he has only established the first prong of plain-error



       2
       We need not decide whether error occurred in reviewing a
claim for plain error. See, e.g., United States v. Whitfield,
695 F.3d 288, 304 (4th Cir. 2012), cert. denied, 133 S.Ct. 1461
(2013) (“We need not reach or decide those points, however,
because even if the court abused its discretion by failing to
instruct on § 2113(d), and even if that assumed error was plain,
(Continued)
                                              6
review. Trejo’s claim fails, however, at the next prong because

he cannot establish that the purported error is “plain.”

     Although the cases on which Trejo relies arguably support

his argument, the Supreme Court did not speak directly on the

question now before us, and we have not done so either. However,

two federal circuit courts of appeals have rejected the same

argument Trejo now makes. See United States v. Burwell, 690 F.3d

500 (D.C. Cir. 2012) (en banc), cert. denied, 133 S.Ct. 1459

(2013); United States v. Haile, 685 F.3d 1211 (11th Cir. 2012),

cert. denied, 133 S.Ct. 1723 (2013). 3 Under these circumstances,

Trejo    is   not   entitled    to   plain-error    relief      even   if,   as    he

contends, the district court erred. See Strieper, 666 F.3d at

295 (“Because the district court followed the reasoning of the

Eighth Circuit regarding an issue on which we have not ruled

directly,     it    did   not   commit   plain   error,   and    we    decline     to

reverse its application of the enhancement.”).

     Trejo also challenges his mandatory 30-year sentence for

the § 924(c)(1)(B)(ii) conviction. We find no merit to Trejo’s




it neither contravened Whitfield’s substantial rights                             nor
warrants the exercise of our discretion to correct it.”).
     3
       In denying Trejo’s post-trial motion for judgment of
acquittal, the district court expressly relied on the reasoning
of Burwell. See No. RWT:10-cr-00472-3, Order, at 4-5 (D. Md.
Oct. 1, 2012).



                                         7
argument    that   this   sentence   is   unconstitutional    or   otherwise

improper. See United States v. Khan, 461 F.3d 477, 495 (4th Cir.

2006)   (rejecting    Eighth   Amendment     challenge   to   mandatory   §

924(c) sentences); United States v. Robinson, 404 F.3d 850, 861-

62 (4th Cir. 2005) (explaining that each sentence for a § 924(c)

conviction must be imposed consecutively).

     Based on the foregoing, we affirm Trejo’s conviction and

sentence.

                                                                   AFFIRMED




                                      8
DAVIS, Circuit Judge, dissenting:

      I respectfully dissent.

      First,    substantially        for    the    reasons   set   forth   in    the

dissenting opinion of Judge Rogers in United States v. Burwell,

690   F.3d    500,   519-27     (D.C.      Cir.   2012)(en     banc)(Rogers,     J.,

dissenting), I would find that there is a mens rea component to

the   statutory      element    of   the       firearm’s   characteristic       as   a

machine gun. See also id. at 543-51 (Kavanaugh, J., dissenting).

      Second, the majority addresses one prong of plain error

review: whether the error here was “clear” or “obvious.” Lest

there be any doubt, however, Supreme Court precedent plainly

informs us that “the omission of an element is an error.” Neder

v. United States, 527 U.S. 1, 15 (1999). Moreover, this case

involves an error affecting Trejo’s substantial rights and the

integrity of judicial proceedings. Accordingly, I would notice

the   error    and   conclude    that      the    government    failed   to   prove

beyond a reasonable doubt all of the elements of the indictment

count charging a violation of 18 U.S.C. § 924(c)(1)(B)(ii) and

would therefore reverse and remand for entry of a judgment of

acquittal on that count.




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