United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1660

___________ United States of America, *

Plaintiff - Appellee, * Appeal from the United States

v. * Western District of Missouri. Willie Mays Aikens, *

Defendant - Appellant. * *

* District Court for the

*

*

*

___________ Submitted: September 12, 1997. Filed: January 6, 1998

___________ Before McMILLIAN, ROSS, and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge. This case comes to us for a second time after the Supreme Court vacated our prior opinion, United States v. Aikens , 64 F.3d 372 (8th Cir. 1995), and remanded the ca se to us in light of Bailey v. United States , 116 S. Ct. 501 (1995). See Aikens v. United States , 116 S. Ct. 1346 (1996). On remand, we aff irmed Willie Mays Aikens’ drug trafficking convictions and ordered tha t his c onviction for using a firearm during a drug trafficking offense b e remanded to the district court for further proceedings. The

## The Ho norable Dean Whipple, United States District Judge for the Western 1 

## District of Missouri. Thefacts underlying Aikens’ drug trafficking convictions are detailed in our 2 

## prior opinion. See Aikens , 64 F.3d at 373-74. -2- dist rict court upheld Aikens’ firearm conviction. Aikens appeals, arguing 1 that there is insufficient evidence to support the conviction and tha t it was plain error to submit a jury instruction that failed to comport with th e Supreme Court’s decision in Bailey . We affirm.

I
We expla in only those facts relating to Aikens’ firearm conviction. 2 Aikens manufactured crack in the den of his home by mixing cocaine an d baking soda in a glass beaker, pouring water on it, heating it with a hand-hel d torch, baking it in a microwave, and running cold water over it. Aiken s stored these supplies for making crack, along with scales, strainers an d oth er drug paraphernalia, in his den. On January 28, 1994, an undercove r police officer visited Aikens’ home to pur chase crack cocaine. While in the den, the undercover officer observed a long-barreled gun that she tho ught was a rifle or a shotgun “leaning against the couch” where Aikens sat while he manufactured the cocaine mixture into crac k. (Trial Tr. Vol. I at 36.) The undercover officer asked Aikens if he was a hunter, referring to the weapon. Aiken s replied that he was not a hunter but that he had the gun fo r protection. On March 1, 1994, the police executed a search warrant a t Aik ens’ home and seized, among other things, a loaded .12-gauge shotgu n located by a door in the den.
A f ederal grand jury charged Aikens with one count of using a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1 ) (1994), and other drug trafficking offenses. The jury convicted Aikens o n all counts. For his use of a firearm,

## 18 U.S.C. § 924(c)(1) imposes a consecutive five-year minimum term o f 3 

## imprisonment upon a person who “during and in relation to any crime of violence o r drug trafficking crime . . . uses or carries a firearm.” -3- Aikens received a consecutive 60-month sen tence in addition to his sentences for the drug trafficking convictions.
Aiken s appealed to this court and we affirmed his convictions an d sentences. See Aikens , 64 F.3d at 377. Aikens then petitioned for a writ of certiorari to the United States Supreme Court. The Supreme Court vacated our prior opinion and remanded the case to us for reconsideration in ligh t of Bailey
. See Aikens , 116 S. Ct. at 1346. We then affirmed Aikens’ crack coc aine distribution convictions and ordered that his conviction for usin g a firearm during a drug trafficking offense be remanded to the distri ct court for further proceedings. The district court affirmed Aikens’ firear m conviction and he brought this appeal, claiming insufficiency of the evidence and plain error in the jury instructions.

II
We first address Aikens’ claim that there is insufficient evidence to support his conviction for using a firearm during and in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). In reviewing the 3 rec ord, “[w]e view the evidence in the light most favorable to the jury’ s verdict, and we will reverse for insuffici ent evidence only if no reasonable jurycould have found the defendant guilty beyond a reasonable doubt. ” Unit ed States v. Czeck , 105 F.3d 1235, 1240 (8th Cir. 1997) (interna l quotations omitted).

In Bailey , the Supreme Court held that “[t]o sustain a co nviction under the ‘use’ prongof § 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime.” Bailey , 116 S. Ct. at 509.

## -4-

Active employment “includes brandishing, displaying, bartering, strikin g with, and most obviously, firing or attemptin g to fire, a firearm.” Id. at 508. The Court added that “a reference to a firearm calculated to brin g about a change in the circumstances of the predicate offense is a ‘use, ’ just as the silent but obvious and forceful presence of a gun on a table can be a ‘use.’” Id. By contrast, the Court distinguished the storage o r co ncealment of a weapon at or near the site of a drug crime by th e defend ant. These circumstances, the Court explained, do not satisfy th e requirement of “use”; the “inert presence of a firearm, without more, is not enough to trigger § 924(c)(1).” Id. Likewise, “[i]f the gun is no t disclosed or mentioned by the offender, it is not actively employed, and it is not ‘used.’” Id.
Our re view of the record convinces us that there is sufficien t evidence to convict Aikens of using a firearm during and in connection with a drug tr afficking crime. The shotgun leaning against the couch wa s visibl e to the undercover officer while Aikens was “cooking” the cocain e into crack to sell to her. Aikens sat on the couch when he manufacturedthe crack. Because of Aikens’ close proximity to the weapon, he coul d imm ediatelyfire it if anything went wrong during the drug transaction
. Also, while manufacturing the crack, Aikens specifically told the underc over officer that the g un was for his protection and not for hunting. Finally, the shotgun was found loaded and in Aikens’ d en when the search warrant was executed. This evidence shows Aikens did more than merely store his sh otgun near the drug crime. A ikens told the buyer the gun was for his protection, the gun was clearly displayed during the drug transaction, and the gun was in close proximity to Aikens while he manufactured and sold the crack. These facts show t hat the gun was “calculated to bring about a change in th e circumstances” of the underlying drug offense. Bailey , 116 S. Ct. at 508. The shotgun served as a “silent but obvious and forceful presence” during both the manufacturing and sale of the crack sufficient to constitute “use” of the firearm und er § 924(c)(1). Id. We find support for our conclusion in Czeck , where we held that “[b]y making it plain to his customers that he

## -5-

was armed and willing to defend his business, [the defendant] discouraged them from any atte mpt to rob him and effectively may have warned them that neg otiationover the price and quality of his wares was not encouraged. ” Czech , 105 F.3d at 1241. Aikens’ weapon served similar purposes here. Aikens next argues that the distr ict court committed plain error when the court instructed the jury that the phrase “used a firearm” in § 924(c)(1) “means having a firearm available to aid in the distribution of cocaine base (‘crack’).” (Jury Instruction No. 23.) Because Aikens didnot object to this instruction at trial, we review for plain error. Fed. R
. Cri m. P. 52(b); United States v. Beasley , 102 F.3d 1440, 1452 (8th Cir
. 1996), cert. denied , 117 S. Ct. 1856 (1997). We must initially determine whether the district court’s error was plain and if it affected Aikens ’ su bstantial rights. Beasley , 102 F.3d at 1452. Unlike harmless erro r review conducted pursuant to Rule 52(a), plain error analysis under Rul e 52(b) normally requires the defendant, rather than the government, to bear the burden of persuasion to show the error af fected his substantial rights. United States v. Olano , 507 U.S. 725, 734 (1993). If the error was plain and substantial rights were affected, “we exercise our discretion to rev erse only where the error ‘seriously affect[ed] the fairness, integrity or pu blic reputation of judicial proceedings.’” United States v. Herron , 97 F.3d 234, 238 (8th Cir. 1996) (quoting Olano , 507 U.S. at 736) (alternation i n Herron ), cert. denied , 117 S. Ct. 998 (1997). The government concedes that this instruction, which was proper under the law of this circuit at the time it was given, erroneously defined the term “use” in ligh t of the Supreme Court’s intervening decision in Bailey
. Thus, the error is plain. See United States v. Webster , 84 F.3d 1056, 1067 (8th Cir. 1996) (court applies law applicable at time of appeal to deter mine plain error). However, the government contests Aikens’ claim that the e rror affected his substantial rights. A defendant’s “substantial rights ar e affected if the er ror prejudicially influenced the outcome of the district court proceedings.” Beasley , 102 F.3d at 1452. If a proper instructio n would not have

## -6-

altered the jury’s conclusion, then Aikens’ substantial rights have not been affected by the erroneous instruction. Id.
Our review of the record leads us to conclude that Aikens’ s ubstantial rights have not been affected. As discussed previously, the evidenc e presen ted showed that Aikens actively employed his shotgun during and i n relationto the crack cocaine distribution crime. The gun was an obvious and forceful presence during both the manufacturing and sale of the crack coc aine by Aikens. Beyond a reasonable doubt, Aikens “used” the shotgu n during and in conn ection with the drug trafficking offense. A proper jury instruc tionregarding the definition of the term “use” would not hav e altered the jury’s conclusion that Aikens was guilty of violating § 924( c)(1). Because Aikens has not shown his substantial rights wer e affected, he has n ot satisfied the plain error standard, and we affirm his conviction. See Beasley , 102 F.3d at 1452-53.

III We have rejected all of Aikens’ a rguments for reversal of his firearm conviction. Accordingly, we affirm the judgment of the district court.
A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.