### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 40568 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
JERRY DON CASTLEBER R Y , Defendant

- Appellant

Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:13

- CR

- 58

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges. PER CURIAM: * Jerry Don Castleberry was convicted by a jury of conspiracy to possess with intent to distribute methamphetamine; possession with intent to distribute methamphetamine; and possession of a firearm in furtherance of a drug trafficking crime. He was sentenced to 181 months of imprisonment and fiv e years of supervised release. On appeal, Castleberry argues that the district court abused its discretion in refusing to instruct the jury that it had

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED May 4, 2015 Lyle W. Cayce Clerk Case: 14-40568 Document: 00513029297 Page: 1 Date Filed: 05/04/2015No. 14

- 40568

to make a unanimous finding as to which firearm he possessed in further ance of a drug crime. Castleberry objected to the exclusion of the unani mity inst ruction at
trial. Accordingly, this court reviews the exclusion of the requested instruction “under an abuse of discretion standard, affording the trial court substantial latitude in describing the law to the jurors.” United States v. Rios , 636 F.3d 168, 171 (5th Cir. 2011) (internal quotation marks and citation omitted). Whether a unanimity instruction is required depends on “which facts are necessary to constitute the crime and to require c onsensus on those facts.” United States v. Villegas , 494 F.3d 513, 514 (5th Cir. 2007). In making this determination, courts should consider “[s]tatutory language and construction, legislative intent, historical treatment of the crime by the courts, duplicity concerns with respect to defining the offense, a nd the likelihood of jury confusion in light of the specific facts presented.” United States v. Correa

Ventura , 6 F.3d 1070, 1082 (5th Cir. 1993).
In Correa

- Ventura , we held that the statutory and legislative history of 18 U.S.C. § 924(c) does not sugges t that unanimity as to the type of firearm is necessary for a conviction of the offense. Id. at 1083

- 8 5 . W e also noted that the jurisprudential treatment of § 924(c) indicates that a § 924(c) violation is a single offense regardless of the number of fir earms used or carried, which alleviates duplicity concerns. Id. at 1085. Finally, like Correa

- Ventura , the facts of Castleberry’s case do no t indicate a likelihood of juror confusion. The
evidence indicates that 97.3 grams of methamphetamine was discove red in Castleberry’s truck, a truck he used to transport drugs to his residence. A subsequent se arch of his residence revealed a number of firearms, a majority of which were loaded, operable, and found in Castleberry’s master bedroom. In addition, office rs found more drugs, baggies, and drug ledgers in Castleberry’s

2 Case: 14-40568 Document: 00513029297 Page: 2 Date Filed: 05/04/2015No. 14

- 40568

master bedroom. Stasha Benfield, Castleberry’s girlfriend, was present during the search and was found in possession of a .22 pistol. She testified that the firearms in the residence belonged to Castleberry and that most were kept loaded for protection due to their drug trafficking operation. Additionally, the court instructed the jury that it had to find that Castleberry “knowingly possessed a firearm in furtherance of the Defendant’s commission of the crime charged in count one.” Additionally, the court explained “that the firearm must have some purpose, role or effect with respect to the drug trafficking crime.” The court further instructed that a “verdict must be unanimous on each count of the indictment.” These facts indicate that there was little to no likelihood of juror confusion. Se e Correa

- Ventura , 6 F.3d at 1086. Accordingly, the judgment of the district court is AFFIRMED.

3 Case: 14-40568 Document: 00513029297 Page: 3 Date Filed: 05/04/2015