FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 February 10, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 03-16377

Non-Argument Calendar

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D. C. Docket No. 03-00093-CR-1-CG

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CECIL RAY FRYE, JR., 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(February 10, 2005)

Before CARNES, MARCUS, and PRYOR, Circuit Judges.

PER CURIAM:

This appeal presents four issues, the second of which is an issue of first

impression in the Eleventh Circuit: (1) whether Cecil Ray Frye Jr.’s guilty plea to
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one count of conspiracy to manufacture methamphetamine under 21 U.S.C. section

846 and two counts of using or carrying a firearm in connection with a drug felony

under 18 U.S.C. section 924(c) was knowing and voluntary; (2) whether Frye was

properly convicted of the firearms charges under section 924(c) when he was not

convicted of the predicate offenses; (3) whether there was an insufficient factual

basis to support the firearms convictions; and (4) whether Frye’s sentence violated

the Sixth Amendment under United States v. Booker, 125 S. Ct. 738 (2005). We

conclude that (1) Frye’s plea was knowing and voluntary, (2) a conviction on the

predicate offense is not necessary for a conviction under section 924(c), (3) the

firearms convictions are supported by the record, and (4) because Frye admitted

the facts used by the district court to calculate his sentence, the sentence did not

violate the Sixth Amendment. We, therefore, affirm the district court. 

I. BACKGROUND

On May 29, 2003, Frye was charged by superseding indictment with seven

counts related to drug trafficking and firearms possession, four counts of which are

relevant to this appeal. Count One of the indictment charged Frye with conspiracy

to manufacture more than 500 grams of methamphetamine. Count Four charged

Frye with an attempt to manufacture more than 50 grams of methamphetamine. 

Count Five charged that during and in relation to the offense charged in Count
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Four, Frye knowingly used, carried, and possessed a firearm, and Count Six

charged that during and in relation to the offense of attempting to manufacture

methamphetamine, Frye knowingly used, carried, and possessed a firearm. Count

Six did not reference any other count in the indictment. 

Frye pleaded guilty to Counts One, Five, and Six, and the government

dismissed the remaining charges. Before accepting the plea, the district court

extensively questioned Frye in a Rule 11 colloquy concerning his knowledge of the

charges against him, the rights he possessed as a criminal defendant, and the

consequences of pleading guilty. Frye then pleaded guilty. The district court

determined that the plea was voluntary and knowing and accepted the plea. 

After the sentencing hearing, at which Frye stated that he had no objections

to the presentence investigation report that would affect the guideline calculations,

the district court sentenced Frye to a total term of 548 months’ imprisonment and

five years’ supervised release. Frye filed a timely notice of appeal. 

II. STANDARD OF REVIEW 

The voluntariness of a guilty plea is reviewed de novo. United States v.

Brown, 117 F.3d 471, 474 (11th Cir. 1997). We review issues of statutory

construction de novo. United States v. Mikell, 102 F.3d 470, 474 (11th Cir. 1996). 

“[W]e will not overturn a judge’s decision to accept a guilty plea unless there has
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been an abuse of discretion.” United States v. Owen, 858 F.2d 1514, 1516 (11th

Cir. 1988). Finally, because Frye did not object to his sentence at sentencing, our

review is limited to plain error. United States v. Duncan, 381 F.3d 1070, 1073

(11th Cir. 2004). 

III. DISCUSSION

“A plea of guilty cannot support a judgment of guilt unless it was voluntary

in a constitutional sense.” Brown, 117 F.3d at 476. A plea is voluntary in a

constitutional sense if the defendant receives real notice of the charge against him

and understands the nature of the constitutional protections he is waiving. Id. Frye

contests the knowing and voluntary nature of his guilty plea. We first, therefore,

determine whether Frye knowingly and voluntarily pleaded guilty. We then

address Frye’s remaining arguments on appeal. 

To circumvent the detailed Rule 11 colloquy, Frye contends that the criminal

proceeding as a whole undermined the knowing and voluntary nature of his plea. 

Specifically, Frye argues that the district court neglected to inquire adequately

concerning the motion to withdraw due to irreconcilable differences that Frye’s

counsel had filed the morning of the plea hearing. This argument fails. 

To determine that a guilty plea is knowing and voluntary the district court

must establish that “(1) the guilty plea [is] free from coercion; (2) the defendant . . .
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understand[s] the nature of the charges; and (3) the defendant . . . know[s] and

understand[s] the consequences of his guilty plea.” United States v. Mosely, 173

F.3d 1318, 1322 (11th Cir. 1999). Here the district court explicitly asked Frye

about the motion to withdraw, and Frye responded that he was satisfied with his

representation and that the difficulty had passed. The district court further

discussed the plea agreement, elements of each offense, burden of proof, and

consequences of pleading guilty with Frye in detail. Frye responded that he was

not coerced into pleading guilty, that he understood the charges and consequences

of pleading guilty, and that he pleaded guilty. The record shows that Frye

understood the charges against him and his options, and that he voluntarily and

knowingly pleaded guilty. 

Second, Frye argues that he could not be convicted of using or carrying a

firearm in connection with a drug trafficking crime under 18 U.S.C. section 924(c)

because he was not convicted of the predicate drug offense for Count Five or

charged with the predicate offense for Count Six. Whether a defendant can be

found guilty under section 924(c) when he was not convicted of the predicate

offense or separately charged with the predicate offense is an issue of first

impression in this circuit. We hold that conviction under section 924(c) does not

require either that the defendant be convicted of or charged with the predicate
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offense. 

Section 924(c)(1)(A) makes it a crime for any person to use or carry a

firearm “during and in relation to any . . . drug trafficking crime . . . for which the

person may be prosecuted in a court of the United States . . . .” 18 U.S.C. §

924(c)(1)(A). A “drug trafficking crime” includes any crime punishable under the

Controlled Substances Act, 21 U.S.C. section 801, et seq. 18 U.S.C. § 924(c)(2). 

By its plain language, section 924 does not require that a defendant be convicted

of, or even charged with, the predicate offense to be found guilty of using or

carrying a firearm in relation to the predicate offense. Section 924(c) requires only

that the drug trafficking crime be one that “may be prosecuted.” Frye, therefore,

was properly convicted of violating section 924(c)(a) despite that he was not

convicted of the predicate offense on Count Five or charged with a predicate

offense on Count Six. 

The other circuits that have addressed this issue have reached the same

conclusion we reach today. United States v. Carter, 300 F.3d 415, 425 (4th Cir.

2002); United States v. Lake, 150 F.3d 269, 274-75 (3d Cir. 1998); United States

v. Nelson, 27 F.3d 199, 200 (6th Cir. 1994); United States v. Myers, 993 F.2d 171,

172 (8th Cir. 1993); United States v. Hill, 971 F.2d 1461, 1467 (10th Cir. 1992);

United States v. Munoz-Fabela, 896 F.2d 908, 910-11 (5th Cir. 1990); United
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States v. Hunter, 887 F.2d 1001, 1003 (9th Cir. 1989). In Munoz-Fabela, the Fifth

Circuit held that “only the fact of the offense, and not a conviction, . . . is needed to

establish the required predicate,” and concluded that the charge of possession of

cocaine with intent to distribute, which was contained in the first indictment but of

which Munoz was not convicted, was a sufficient “drug trafficking offense” within

the meaning of section 924(c). 896 F.2d at 910-11. Similarly, in Hunter, the Ninth

Circuit held that “a defendant charged with violating section 924(c)(1) must be

proven to have committed the underlying crime, but nothing in the statute or the

legislative history suggests he must be separately charged with and convicted of

the underlying offense.” 887 F.2d at 1003. We agree with their reading of the

plain language of section 924.

Third, Frye argues that there was an insufficient factual basis in the record to

support the convictions on Counts Five and Six. Rule 11(b)(3) requires that,

before accepting a guilty plea, a district court “must determine that there is a

factual basis for the plea.” Fed. R. Crim. P. 11(b)(3). “The purpose of this

requirement is to protect a defendant who mistakenly believes that his conduct

constitutes the criminal offense to which he is pleading.” United States v. Lopez,

907 F.2d 1096, 1100 (11th Cir. 1990) (citing McCarthy v. United States, 394 U.S.

459, 467, 89 S. Ct. 1166, 1171 (1969)). “The standard for evaluating challenges to
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the factual basis for a guilty plea is whether the trial court was presented with

evidence from which it could reasonably find that the defendant was guilty.” Id. 

The facts presented by the parties to enable the trial court to perform its role, under

Rule 11(b)(3), were contained in nine pages of admissions by Frye, which the

parties entitled the “factual resume,” so we must evaluate Frye’s argument against

his admissions in that factual resume.

To convict a defendant under section 924(c)(1), the government must

demonstrate that the defendant used or carried a firearm, during and in relation to a

drug trafficking crime. Smith v. United States, 508 U.S. 223, 227-28, 113 S. Ct.

2050, 2053 (1993). A defendant carries a firearm if it is carried directly on his

person or carried in his vehicle. Muscarello v. United States, 524 U.S. 125, 131,

118 S. Ct. 1911, 1916 (1998). To prove the “in relation to” requirement, the

government must demonstrate that the firearm had “some purpose or effect with

respect to the drug trafficking crime; its presence or involvement cannot be the

result of accident or coincidence.” Smith, 508 U.S. at 238, 113 S. Ct. at 2058-59. 

“The gun at least must facilitate, or have the potential of facilitating, the drug

trafficking offense.” Id. at 238, 113 S. Ct. at 2059 (citations and internal

punctuation omitted). 

The factual resume provides sufficient facts for the district court reasonably
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to have determined that the defendant was guilty. The resume states that, during

the attempt to manufacture methamphetamine at issue in Count Five, Frye carried a

Colt revolver in his left jacket pocket while transporting chemicals and equipment. 

The resume also states that Frye carried a Ruger 9 mm semi-automatic pistol

during the attempted theft of anhydrous ammonia for making methamphetamine at

issue in Count Six because the Ruger was found in plain view in the vehicle with

Frye. A reasonable factfinder could have concluded that in each case the gun

facilitated or had the potential to facilitate the offense. The district court did not

abuse its discretion when it accepted the plea. 

Finally, Frye argues that the district court erred when it enhanced his

sentence based on factors that were neither admitted by him nor proved beyond a

reasonable doubt in violation of his Sixth Amendment rights. Frye objects to the

enhancement he received for being an organizer in the conspiracy under U.S.S.G.

section 3B1.1(a) and for risk of harm to human life or the environment under

U.S.S.G. section 2D1.1(b)(5)(B). Frye’s argument is belied by the record.

In Blakely v. Washington, the Supreme Court held that the imposition of a

sentencing enhancement must be supported by facts that were either admitted by

the defendant or found beyond a reasonable doubt by the jury, Blakely v.

Washington, 124 S. Ct. 2531, 2538 (2004), and in Booker, the Supreme Court
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extended the reasoning of Blakely to the federal sentencing guidelines. The

Booker Court concluded, in the opinion written by Justice Stevens, “Accordingly

we reaffirm our holding in Apprendi: Any fact (other than a prior conviction)

which is necessary to support a sentence exceeding the maximum authorized by the

facts established by a plea of guilty or a jury verdict must be admitted by the

defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S. Ct. at

756. So long as Frye in pleading guilty admitted the facts that support the

enhancement of his sentence, there is no violation of the Sixth Amendment.

The record shows that the facts admitted by Frye, in the factual resume

submitted to the district court as part of the guilty plea, support the two

enhancements to his sentence. First, an enhancement under section 3B1.1(a) is

supported if the defendant was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive. U.S.S.G. §

3B1.1(a). In the factual resume, Frye admitted that the government could prove

beyond a reasonable doubt that he recruited various individuals to steal ingredients

to make methamphetamine, distributed methamphetamine as payment for services

and rent, paid one individual to make the drugs, and instructed another how to

“cook” the methamphetamine. Frye admitted that the conspiracy involved at least

ten participants. Frye’s admissions support the finding of the district court that
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Frye was an organizer in the offense. 

Second, an enhancement under section 2D1.1(b)(5)(B) is appropriate if the

offense (1) involved the manufacture of methamphetamine and (2) created a

substantial risk of harm to human life or the environment. U.S.S.G. §

2D1.1(b)(5)(B). The offense to which Frye pleaded guilty was conspiracy to

manufacture methamphetamine, and in the resume, Frye admitted that, in the

course of the conspiracy, he manufactured approximately three to four ounces of

methamphetamine per week. Frye also admitted that he“cooked”

methamphetamine at three separate residential locations and that protective gear

was required to clear a clandestine methamphetamine laboratory. These

admissions are sufficient to support the finding by the district court that the offense

involved a substantial risk to human life or the environment. See United States v.

Layne, 324 F.3d 464, 468-71 (6th Cir. 2003). The sentence, therefore, did not

violate the Sixth Amendment as explicated in Booker, and the district court did not

err.

IV. CONCLUSION

Because Frye knowingly and voluntarily pleaded guilty, the district court did

not abuse its discretion when it accepted the guilty plea, and the sentence did not

violate the Sixth Amendment, we AFFIRM.