United States Court of Appeals

Fifth Circuit

FILED

February 21, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

04-60701

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GERRIAN LAMOND MCGILBERRY,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Mississippi

Before SMITH, BENAVIDES, and PRADO, Circuit Judges.

BENAVIDES, Circuit Judge:

A jury convicted Gerrian McGilberry of possession of a firearm

by a convicted felon (Count 1) and possession of a firearm during

and in relation to a drug trafficking offense (Count 2). The court

sentenced McGilberry to forty-one months imprisonment on Count 1

and a consecutive term of sixty months on Count 2. 

On appeal, McGilberry argues for the first time that his

indictment was defective, there was a constructive amendment of his

indictment, and the trial judge erred by treating the Sentencing
2

Guidelines as mandatory. We AFFIRM McGilberry’s conviction and

sentence. 

I. FACTS AND PROCEDURAL BACKGROUND

The evidence presented at trial showed that, on the night in

question, police officers arrested J.L. Payne for domestic assault

at a hotel where he was temporarily staying. Payne informed the

officers that somebody was supposed to deliver crack cocaine to his

room later that evening. Payne agreed with the officers to

participate in a sting operation to catch the dealer.

McGilberry arrived at Payne’s hotel room shortly thereafter

accompanied by Elton Cooley. Payne then called the officers and,

using a code phrase, indicated that McGilberry had drugs with him.

When the officers entered the room, McGilberry was sitting alone at

a table with a handgun on it. Payne testified that McGilberry had

earlier taken the gun from his jacket and set it on the table. The

officers also found crack cocaine in a jacket that was hanging on

McGilberry’s chair. 

McGilberry was indicted on a single charge of being a felon in

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

924(a)(2). After pleading not guilty, a superseding indictment was

issued with the additional charge of “knowingly possess[ing] a

firearm . . . during and in relation to a drug trafficking crime.”

See 18 U.S.C. 924(c)(1). This second charge was added

approximately one week before trial commenced, but McGilberry
3

expressly waived any right to additional preparation time.

The instructions allowed the jury to convict on this second

charge only if it found that McGilberry “knowingly carried a

firearm during and in relation to [his] alleged commission of the

crime of possession of cocaine base with intent to distribute.”

The jury convicted McGilberry on both counts. 

At sentencing, the district court calculated McGilberry’s

Guideline range as forty-one to fifty-one months for Count 1 and

sentenced him to forty-one months, “the minimum that I can give him

as to Count 1.” McGilberry was then sentenced to a consecutive

sixty-month sentence on Count 2, the minimum required by statute.

18 U.S.C. § 924(c)(1)(A). 

II. DISCUSSION

A. Defective Indictment

McGilberry argues for the first time on appeal that the

superseding indictment failed to charge him with a crime when it

charged him with “possess[ing] a firearm . . . during and in

relation to a drug trafficking crime.” Because he did not raise

this issue below, we review for plain error. FED. R. CRIM. PRO.

52(b). This standard requires a showing that there was “(1) error,

(2) that is plain, and (3) that affects substantial rights.”

United States v. Olano, 507 U.S. 725, 732–35 (1993). Even after

such a showing, we only correct the error where it “seriously

affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736 (quoting United States v. Atkinson, 297
1 While § 924(c)(1)(A) certainly targets two different types

of conduct, we do not address whether it contains two distinct

offenses or merely two methods to commit the same general offense.

This question has been addressed by some of our sister circuits.

See, e.g., United States v. Arreola, 467 F.3d 1153, 1158 (9th Cir.

4

U.S. 157, 160 (1936)).

1. The Indictment was Plainly Erroneous

The sufficiency of an indictment is measured by whether (1)

each count contains all essential elements of the offense charged,

(2) the elements are charged with particularity, and (3) the charge

is specific enough to preclude a subsequent prosecution on the same

offense. United States v. Threadgill, 172 F.3d 357, 366 (5th Cir.

1999). 

McGilberry argues, the government concedes, and we find that

the language used in the indictment was plainly erroneous. Section

924 refers to someone who either “uses or carries a firearm . . .

during and in relation to any . . . drug trafficking crime,” or

someone “who, in furtherance of any such crime, possesses a

firearm.” 18 U.S.C. § 924(c)(1)(A). When the conduct charged is

possession of a firearm, the appropriate standard of participation

is “in furtherance of” a crime. However, if the defendant uses or

carries a firearm, the participation standard is “during and in

relation to” a crime. Here, the indictment erroneously combined

the “possession” prong of the statute with the “during and in

relation to” prong, thereby failing to list the essential elements

of any criminal conduct.1 See generally United States v. Ceballos-
2006) (holding that while § 924 “names two distinct acts, it does

not create two separate offenses”). It is unnecessary to resolve

this issue here, and would be imprudent to do so because the

parties did not directly address it. 

5

Torres, 218 F.3d 409, 412–15 (5th Cir. 2000).

This error is not necessarily harmless, as this court has

recognized that “[t]here are situations where a possession would be

‘during and in relation to’ drug trafficking without ‘furthering or

advancing’ that activity.” Id. at 413. A brief history of § 924

helps to appreciate the differences between the two types of

conduct that are criminalized therein.

An earlier version of § 924 criminalized only “us[ing] or

carry[ing] a firearm during and in relation to” drug trafficking,

without any reference to simple possession. Id. at 412. The

Supreme Court grappled with the meaning of this provision as it

pertained to two defendants, one who had a firearm in the trunk of

a car while drugs were in the passenger compartment, and another

who kept a gun locked away in his closet near some illegal drugs.

Bailey v. United States, 516 U.S. 137 (1995). The Court found the

evidence insufficient to convict either defendant under the “uses

or carries” provision because the firearms were not “actively

employed.” Id. at 150–51. 

The Court held that use of a firearm requires more than mere

possession of an accessible firearm. Id. at 141, 143–44.

“[N]early every possession of a firearm by a person engaged in drug
2 The distinction is admittedly vague. It appears that the

“possession in furtherance of” language completely swallows the

“uses or carries during and in relation to” language. While this

reading would render some of the statutory language superfluous,

“surplusage in this statute is understandable given the history

behind the amended version of § 924.” Ceballos-Torres, 218 F.3d at

415. 

It is difficult and maybe impossible to concoct a situation

where a firearm is actively employed during a drug crime but not

possessed in furtherance of that crime. A situation where a

defendant entrusts a firearm to a third party for use during a

joint criminal enterprise could arguably constitute use and active

employment without possession, but we are unaware of any case

holding as much. 

6

trafficking would satisfy that standard, ‘thereby eras[ing] the

line that the statutes, and the courts, have tried to draw.’” Id.

at 144 (quoting United States v. McFadden, 13 F.3d 463, 469 (1st

Cir. 1994) (Breyer, C.J., dissenting)). 

After the Supreme Court’s opinion in Bailey, Congress

broadened § 924 and added the “possession in furtherance of”

language. See Ceballos-Torres, 218 F.3d at 413. In interpreting

this new language, this circuit has held that mere possession is

only criminalized where it “furthers, advances, or helps forward a

drug trafficking offense.” Id. at 414. The result is that the use

or carrying of a firearm is illegal when it is “actively employed”

during a drug crime, and mere possession is criminal only when it

furthers or advances the drug trafficking offense.2

With that background in mind, it is apparent that the

indictment in this case, referencing only “possess[ion] . . .

during and in relation to” a drug trafficking crime failed to list
7

all the elements of any offensive conduct. It combines the lower

conduct standard with the lower standard of participation embodied

in § 924, and would allow for a conviction where the firearm is not

actively employed and does not advance or further the drug crime.

In light of Bailey and Ceballos-Torres, that error is plain. 

2. The Error Did not Affect the Fairness, Integrity, or

Public Reputation of the Proceedings

Having found that there was plain error below, the next step

in the analysis is typically to consider whether the error affected

McGilberry’s substantial rights. Olano, 507 U.S. at 734. While

this inquiry normally requires a finding that the error was

prejudicial, it is unclear what type of showing must be made to

prove that a defective indictment affected substantial rights. See

United States v. Cotton, 535 U.S. 625, 632–33 (2002); Olano, 507

U.S. at 735 (“We need not decide whether the phrase ‘affecting

substantial rights’ is always synonymous with ‘prejudicial.’”).

The Supreme Court has repeatedly avoided answering that question,

and instead chosen to skip this step in the plain error analysis

when defective indictments are at issue. See, e.g., Cotton, 535

U.S. at 632–33; Johnson v. United States, 520 U.S. 461, 468–70

(1997).

We follow the Supreme Court’s lead in turning directly to the

fourth step of the plain error analysis. Even if the defective

indictment in this case affected McGilberry’s substantial rights,

there are two reasons why it cannot be said that it affected the
8

fairness, integrity or public reputation of his judicial

proceedings.

The first is that the evidence that McGilberry used or carried

the firearm in question was “essentially uncontroverted.” See

Cotton, 535 U.S. at 633; Johnson, 520 U.S. at 470. On the evidence

presented, it would have been impossible for a jury to find that

McGilberry possessed the firearm but did not use or carry it.

According to Payne’s unrefuted testimony, McGilberry removed the

gun from his jacket and set it on the table after he arrived in

Payne’s motel room. In addition to Payne, two officers and

McGilberry’s only witness all testified that the gun was sitting

directly in front of Payne during the incident. 

While this may not be overwhelming evidence in the abstract,

the jury’s verdict necessarily included a finding that McGilberry

used or carried the firearm in question. The jury found that

McGilberry possessed the gun that, according to every witness, sat

on the table directly in front of him. The Supreme Court has

explicitly stated that § 924 “certainly includes brandishing [and]

displaying” a firearm as methods of using it. Bailey, 516 U.S. at

148; see also Muscarello v. United States, 524 U.S. 125, 136

(1998).

The only theory presented as to how the gun ended up on the

table is that McGilberry carried and placed it there. In

convicting McGilberry, the jury must have credited the
3 McGilberry never alleges that the prosecution changed or

concealed its version of the events that led to this charge, so

there is no complaint that the indictment provided him with

inadequate notice. 

4 There are cases where a jury could conclude that a defendant

possessed but did not use or carry a firearm during and in relation

to a crime—if a defendant stashes a gun in a nearby dresser drawer

for use if something goes awry, for instance—but this is not such

a case. 

9

uncontroverted testimony that McGilberry (1) possessed the gun in

question, (2) carried the gun to the motel room, and (3) displayed

it openly.3 No other theory of possession was ever offered.

Because the jury necessarily found each element contained in § 924,

the erroneous indictment did not affect the fairness or integrity

of the underlying proceedings.4

The second reason the error did not affect the proceedings’

fairness is that the jury was properly instructed on the elements

of § 924. While the indictment erroneously charged McGilberry with

simple possession, the jury was instructed to convict McGilberry

only if it found that he “knowingly carried a firearm during and in

relation to [his] alleged commission of the crime of possession of

cocaine base with intent to distribute.” (emphasis added). The

instructions continued that the firearm “must have some purpose,

role, or effect with respect to the drug trafficking crime.” While

the indictment was plainly erroneous, the jury instructions largely

mitigated that error by properly conveying the elements of § 924.

B. Constructive Amendment

McGilberry next complains that the jury instructions amounted
10

to a constructive amendment of the indictment. A constructive

amendment occurs when the jury is allowed “to convict the defendant

upon a factual basis that effectively modifies an essential element

of the offense charged.” United States v. Holley, 23 F.3d 902, 912

(5th Cir. 1994); United States v. Salinas, 654 F.2d 319, 324 (5th

Cir. 1981). Such modifications endanger a defendant’s Fifth

Amendment right to be “tried only on the charges presented in a

grand jury indictment.” United States v. Chandler, 858 F.2d 254,

256 (5th Cir. 1988). 

McGilberry raises this argument for the first time on appeal,

and we review for plain error. United States v. Daniels, 252 F.3d

411, 414 n.8 (5th Cir. 2001) (explaining that constructive

amendments once required automatic reversal in this circuit, but

have since been held susceptible to plain error review). As we did

in Daniels, id., we assume without deciding that the first three

requirements of plain error are met and turn directly to the fourth

prong and ask whether any error “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Id. at

414 (quoting Olano, 507 U.S. at 736). 

Here, the indictment charged McGilberry with possession of a

firearm during and in relation to the drug trafficking crime,

whereas the jury instructions required a finding that he “knowingly

carried a firearm during and in relation to the defendant’s alleged

commission of the crime.” (emphasis added). The instructions
5 This is not to say that the government can unabashedly

charge § 924 offenses broadly and then narrow the charges through

jury instructions depending on what the trial evidence shows. In

such instances, a constructive amendment complaint might be

successful if there were reason to believe the defendant lacked

notice as to the underlying conduct he was being charged with.

There is no such allegation here, so we cannot say that the

fairness or integrity of the proceedings were seriously jeopardized

by narrowing the grounds for conviction. 

11

required a more demanding showing than the indictment, because

carrying a firearm “involves some dominion or control, [and]

connotes more than mere possession.” United States v. RamonRodriguez, 136 F.3d 465, 468 (1998). 

In other words, the instructions only narrowed the grounds for

conviction and did not expand the bases on which McGilberry could

be convicted. “[A]n instruction which does not broaden the

possible bases of conviction beyond what is embraced by the

indictment does not constitute a constructive amendment,” at least

not a reversible one.5 United States v. Gonzales, 436 F.3d 560,

577 (5th Cir. 2006) (emphasis in original) (citing United States v.

Miller, 471 U.S. 130 (1985)).

In addition to narrowing the offense charged, the instructions

correctly stated a grounds for conviction under § 924. In such

circumstances, we regularly find that the error did not affect the

fairness of the proceedings sufficient to reverse on plain error

review. See Daniels, 252 F.3d at 414; United States v. Reyes, 102

F.3d 1361, 1365 (5th Cir. 1996). Because the constructive

amendment narrowed the grounds for conviction and correctly listed
12

a statutory ground for conviction under § 924, any error did not

render the proceedings unfair. 

C. Booker Error

McGilberry’s final argument is that the district court erred

when sentencing him under a mandatory Guidelines scheme. See

United States v. Booker, 543 U.S. 220 (2005). “Because he did not

raise this argument in the district court, we review this argument

for plain error.” United States v. Valenzuela-Quevedo, 407 F.3d

728, 732 (5th Cir. 2005); United States v. Mares, 402 F.3d 511,

520–21 (5th Cir. 2005). 

To succeed on plain error review, McGilberry must show that

“the result would have likely been different had the judge been

sentencing under the Booker advisory regime rather than the preBooker mandatory regime.” Mares, 402 F.3d at 522. This requires

McGilberry to “point to statements in the record by the sentencing

judge demonstrating a likelihood that the judge sentencing under an

advisory scheme rather than a mandatory one would have reached a

significantly different result.” United States v. Pennell, 409

F.3d 240, 245 (5th Cir. 2005). McGilberry has not satisfied this

burden. 

McGilberry relies primarily on (1) the district court’s

statement that the Guidelines “are severe for the crimes for which

Mr. McGilberry has been convicted,” and (2) the fact that

McGilberry received the minimum sentence permitted by the
13

Guidelines. Taken in isolation, these facts might suggest that

McGilberry would have received a lesser sentence under the proper

advisory scheme, but they are insufficient to show a likelihood

that a lesser sentence would have been imposed. See United States

v. Bringier, 405 F.3d 310, 318 n.4 (5th Cir. 2005) (judge’s

indication that Guideline sentence was harsh and imposition of

minimum sentence were insufficient to show defendant’s substantial

rights were violated). 

Moreover, the judge’s comments throughout sentencing make

clear that he was disinclined to be overly lenient. He commented

on McGilberry’s criminal history and that “time after time he’s

received probation, suspended sentences, and . . . [t]hat has a

tendency to cause the defendants at a federal level to think that

they can violate all kinds of criminal laws.” He continued that,

“when a person is on a course of criminal conduct and selfdestruction, that if he had some time in jail, it might cause him

to resurrect himself and cause his family to help him do so.” 

In light of these comments, and absent any affirmative

indication that the judge would have given McGilberry a lesser

sentence under an advisory scheme, McGilberry has failed to show

that his sentence was the result of plain error.

III. CONCLUSION

For the foregoing reasons, we AFFIRM McGilberry’s conviction

and sentence.