PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4112

LAURA LYNN GROCE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Bryson City.

Lacy H. Thornburg, District Judge.

(CR-02-65)

Argued: December 3, 2004

Decided: February 28, 2005

Before LUTTIG, TRAXLER, and KING, Circuit Judges.

Affirmed in part; vacated and remanded in part by published opinion.

Judge Luttig wrote the opinion, in which Judge Traxler and Judge

King joined. 

COUNSEL

ARGUED: William Edmund Loose, Asheville, North Carolina, for

Appellant. Donald David Gast, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North

Carolina, for Appellee. ON BRIEF: Robert J. Conrad, Jr., United

States Attorney, Charlotte, North Carolina, for Appellee.
OPINION

LUTTIG, Circuit Judge:

Appellant Laura Lynn Groce pled guilty to bank robbery under 18

U.S.C. § 2113(a). Thereafter, she proceeded to trial on the charge of

using or carrying a firearm during and in relation to, or possessing a

firearm in furtherance of, the bank robbery, in violation of 18 U.S.C.

§ 924(c)(1)(A). Following the denial of her motion for judgment of

acquittal, Groce was convicted by the jury. Over Groce’s objection,

the district court adopted the finding of the Presentence Investigation

Report (PSR) that she had "brandished" a firearm during and in relation to a crime of violence, and sentenced her accordingly. Groce

appeals from the denial of her motion for acquittal and from her sentence. We affirm Groce’s conviction, but vacate her sentence and

remand for further proceedings. 

I.

On July 26, 2002, Groce entered BB&T Bank in Murphy, North

Carolina. J.A. 22-24. Groce approached the teller and gave her a note

on which appeared the following text: "Please place $20,000 in this

bag. I want old bills. Hundreds and 20s. Do not tell anybody. Do not

trip the alarm. I have a gun. Thank you." J.A. 29. Groce took approximately $3000 from the teller, placed it in her purse, and walked out

the door. J.A. 32-33. The teller did not see a gun while Groce was in

the bank. J.A. 35. Groce’s codefendant, Pamela Scholes, drove her

away from the bank. J.A. 87. 

Within minutes, the teller gave the police a complete description of

Groce’s car and the direction it proceeded from the bank, and the

police stopped Scholes and Groce. J.A. 87. The officers who apprehended Groce searched her car and found the purse which contained

the stolen money. J.A. 30, 45. The officers also found a pistol inside

the purse. J.A. 45-46. 

Groce was subsequently questioned by Agent Mark Aysta of the

FBI. While Groce admitted that she had robbed the bank and that she

had placed the gun in the car, Aysta testified that Groce told him that

2 UNITED STATES v. GROCE
"she did not take it [the gun] into the bank." J.A. 73. He further testified that Groce explained that after she was pulled over and the police

began questioning her partner, she "began to stuff the cash . . . into

the glove compartment [where she claimed the gun was located]. She

was afraid that the gun would go off as she was attempting to stuff

the money into the glove compartment, so she removed the gun from

the glove compartment and put it in the bag." J.A. 68. One of the

arresting officers testified that he observed Groce while his partner

was questioning Groce’s accomplice and that she "couldn’t have gone

in the glove box." J.A. 53. At trial, Groce changed her explanation,

testifying that she placed the gun in the bag "sometime between the

time I got into the car and I got stopped." J.A. 86. 

Groce sought a judgment of acquittal, claiming that the indictment

referenced the statutory citation for the prohibition of "brandishing"

a firearm, 18 U.S.C. § 924(c)(1)(A)(ii), but that the government did

not present evidence to the jury to prove that the firearm was brandished, as opposed to simply used, carried, or possessed. The district

court concluded that brandishing was only a sentencing factor that

need not be presented to the jury, and denied Groce’s motion. After

the jury returned its verdict, the district court sentenced Groce to 84

months imprisonment pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), which

provides for a seven-year minimum sentence if a firearm is "brandished."1

 J.A. 8, 167-69. Groce now appeals that sentence and the

denial of her motion for acquittal. 

II.

Groce first contends that the district court erred by enhancing her

sentence pursuant to section 924(c)(1)(A)(ii) because it failed to make

a factual finding that Groce "brandished" a firearm during the robbery. See 18 U.S.C. § 924(c)(1)(A) & (ii) ("[A]ny person who, during

and in relation to any crime of violence . . . uses or carries a firearm,

or who, in furtherance of any such crime, possesses such a firearm,

shall, in addition to the punishment provided for such crime of violence . . . if the firearm is brandished, be sentenced to a term of

1The United States Sentencing Guidelines direct the district court to

sentence individuals who violate § 924(c)(1)(A)(i) or (ii) to the mandatory minimum sentence in the statute. U.S.S.G. § 2K2.4(b) (2004). 

UNITED STATES v. GROCE 3
imprisonment of not less than 7 years" (internal division omitted)).

"Brandish" is defined as follows:

[T]he 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. 

18 U.S.C. § 924(c)(4) (emphasis added). Groce agrees that, if the gun

had been present in the bank, the presentation of the note referencing

the gun would constitute the "otherwise mak[ing] [of] the presence of

the firearm known to another person" within the meaning of subsection (c)(4). She contends, however, that she did not carry the gun into

the bank and therefore her note could not make the presence of the

gun (as opposed, presumably, to its existence) known to those persons

inside the bank. Groce further argues that neither the district court nor

the jury ever concluded that the gun was present in the bank. 

The government first contends that even if Groce is correct that the

gun remained at all times in the car, the gun was nonetheless "brandished" within the meaning of the statute. We do not agree. Because

the word "presence" is not defined by the statute, the plain meaning

and the context in which the word appears provide our best guide to

its meaning. See King v. St. Vincent’s Hospital, 502 U.S. 215, 221

(1991)("[T]he meaning of statutory language, plain or not, depends on

context."). The statute defines a brandish as occurring when an individual takes one of two courses of action: either the individual "display[s] all or part of the firearm," or the individual "otherwise

make[s] the presence of the firearm known." Because "otherwise"

means "in a different way or manner," Webster’s Third New Int’l Dictionary 1598 (1986), the most straightforward reading of the full statute is that the display of all or part of a firearm is one way, of which

there are others, by which one may "make the presence of the firearm

known." 18 U.S.C. § 924(c)(4). In such a context, the best reading of

the word "presence" is the fact or condition of being "in view or at

hand," because the fact that a gun is in view or at hand is exactly what

the display of a gun makes known. Webster’s Third New Int’l Dictionary 1793 (1986). 

4 UNITED STATES v. GROCE
Our interpretation is further supported by the requirement that the

presence of the firearm be made known "in order to intimidate

[another] person." 18 U.S.C. § 924(c)(4). The obvious way of intimidating a person during the commission of a crime is not to make it

known that a gun exists somewhere, but, rather, that the gun is present

"at hand" such that it could be used. 

Even if we could not conclude, on the basis of the language of the

statute, that the requirement of "presence" required that the gun actually be "at hand," the term "presence" certainly does not unambiguously include situations where the gun is not at hand. Thus, the rule

of lenity would dictate the result that we reach. See Scheidler v.

NOW, Inc., 537 U.S. 393, 409 (2003) ("When there are two rational

readings of a criminal statute, one harsher than the other, we are to

choose the harsher only when Congress has spoken in clear and definite language" (quoting McNally v. United States, 483 U.S. 350, 359-

60 (1987))). 

Because we define "presence" as "in view or at hand," Groce cannot have made the gun’s "presence" known to the teller if the gun was

in fact not in view or at hand, but was in her car. Thus, Groce’s minimum sentence for a "brandish" could only be enhanced upon a finding

that the gun was in the bank with her, either on her person or close

at hand. 

The government argues that even if the gun must have been on

Groce’s person to support a finding that the gun was brandished, both

the jury’s verdict and the PSR — adopted by the district court — necessarily rested on such a finding. But, as to the PSR, the government

points to no factual conclusion that necessarily requires that the gun

was ever present in the bank. Although the government is correct that

the PSR and the district court both concluded that the statute for brandishing provided the appropriate minimum sentence, J.A. 164, 185,

neither clarified whether that legal conclusion rested on a factual finding that the gun was with Groce in the bank, or on what we have concluded is an error of law (i.e., the belief that a brandish could occur

even if the gun was in the car). The district court, then, cannot be said

to have made a factual finding that a brandish, as that term is properly

understood, occurred. 

UNITED STATES v. GROCE 5
Likewise, the jury’s verdict that Groce did use, carry, and possess

a gun did not require the jury to find that the gun was in the bank,

rather than in the car. The jury was instructed, in relevant part, only

that

[i]n considering whether there was active use of the firearm,

you may consider evidence, if any, that the firearm was displayed or bartered or specifically referred to. In addition, the

evidence must show that the firearm was carried . . . during

or in relation to the crime of bank robbery. To carry a firearm means to have knowing possession or transportation of

the firearm in some manner. 

J.A. 142. Plainly, the jury could have found that the evidence showed

that Groce had knowing possession of a gun, to which she specifically

referred in her note, during or in relation to a bank robbery even if the

jury believed that Groce’s gun remained in her car to assist in her

escape. 

Because neither the district court nor the jury necessarily concluded that the gun was in the bank, Groce’s sentence for brandishing

a gun must be vacated, and the case remanded for a determination of

whether the gun was in fact in the bank when the note was presented.2

2Groce maintains for the first time on appeal that Blakely v. Washington, 124 S. Ct. 2531 (2004), entitles her to a jury determination of

whether the gun was brandished. We do not agree. Section

924(c)(1)(A)(i) itself does not set a maximum sentence for the use, carry,

or possession of a gun absent a brandish, but rather sets a mandatory

minimum for any sentence rendered under that subsection. The court’s

application of the seven-year mandatory minimum sentence based on

judicial fact finding thus did not result in a sentence above the otherwiseapplicable statutory maximum and was not error. See Harris v. United

States, 536 U.S. 545, 568 (2002) (holding, post-Apprendi, that "[b]asing

a 2-year increase in the defendant’s minimum sentence on a judicial finding of brandishing does not evade the requirements of the Fifth and Sixth

Amendments"). The factual conclusion that the gun was brandished did

result in the imposition of a sentence which is higher than the five-year

maximum sentence which was available under the guidelines for the use,

carry, or possession of a gun absent a brandish. However, to the extent

this increase in Groce’s sentence is problematic under United States v.

Booker, 125 S. Ct. 738 (2005), any problem will be remedied when the

district court resentences under advisory guidelines. 

6 UNITED STATES v. GROCE
III.

Groce next claims that she was entitled to a judgment of acquittal

because the jury did not find that she had brandished the gun, but only

that she used, carried, and possessed the gun. She concedes that

under Harris, brandishing generally "need not be alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt,"

because it is not an element of the offense. Harris, 536 U.S. at 568.

However, she claims that because her indictment cited the statutory

subsection that includes the enhancement for "brandishing," the government was required to prove the "brandish" to the jury. See J.A. 11;

J.A. 140-41. This argument is unavailing. The Federal Rules of Criminal Procedure specifically provide that "[u]nless the defendant was

misled and thereby prejudiced, neither an error in a citation nor a citation’s omission is a ground to dismiss the indictment or information

or to reverse a conviction." Fed. R. Crim. P. 7(c)(3). See also United

States v. Massuet, 851 F.2d 111, 116 (4th Cir. 1988) ("‘[T]he law at

present regards citations to statutes or regulations as not a part of the

indictment. A conviction may be sustained on the basis of a statute

or regulation other than that cited.’" (quoting Fed. R. Crim. P. 7(c)(3)

advisory committee’s note)). Here, Groce does not assert that she was

misled or prejudiced by the inclusion of the citation applicable to

brandishing of a firearm rather than to use and carry of a firearm.

Therefore, she is not entitled to acquittal based on the inclusion of

that citation. 

CONCLUSION

For the reasons discussed, we affirm Groce’s conviction, but vacate

her sentence and remand the case for further proceedings consistent

with this opinion.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART

UNITED STATES v. GROCE 7