UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4840

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH WAYNE GRAGG,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Statesville. Richard L. Voorhees,

District Judge. (5:05-cr-00220-RLV)

Submitted: September 10, 2008 Decided: September 26, 2008 

Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Claire J. Rauscher, Executive Director, Ross Richardson, FEDERAL

DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North

Carolina, for Appellant. Gretchen C. F. Shappert, United States

Attorney, Charlotte, North Carolina; Matthew T. Martens, Assistant

United States Attorney, Asheville, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: 

On July 25, 2005, Kenneth Wayne Gragg was charged in a

four count indictment. Counts One and Two charged Gragg with

possession of methamphetamine with intent to distribute, in

violation of 21 U.S.C.A. § 841(b) (West 2000 & Supp. 2008). Count

Three charged Gragg with being a felon in possession of a firearm,

in violation of 18 U.S.C. § 922(g) (2000). Finally, Count Four

charged Gragg with knowingly and unlawfully using and carrying a

firearm during and in relation to a drug trafficking crime and

possessing a firearm in furtherance of a drug trafficking crime.

On July 25, 2005, the Government also filed a notice of intent to

seek enhanced penalties pursuant to 21 U.S.C. § 851 (2000). 

On the day of trial, Gragg pled guilty, without the

benefit of a plea agreement, to Counts One, Two, and Three. Gragg

then proceeded to trial on Count Four. At the conclusion of the

evidence, the jury found Gragg guilty of Count Four. Five months

after his trial, Gragg filed a pro se motion to withdraw his guilty

pleas. Following a hearing on Gragg’s motion, the district court

denied the motion and imposed sentence on Gragg. Gragg timely

noted his appeal. We affirm the judgment of the district court. 

On appeal, Gragg first contends that the theory of

constructive possession cannot sustain a § 924(c) conviction, and

therefore, the district court erred in instructing the jury that,

to convict him of the § 924(c) charge, the jury could find that he
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constructively possessed a .22 caliber handgun. Gragg failed to

object to the instruction in the district court. Accordingly, his

claim is reviewed only for plain error. United States v. Hastings,

134 F.3d 235, 259 (4th Cir. 1998). Plain error review requires the

defendant establish that: (1) there was error; (2) the error was

“plain;” and (3) the error affected the defendant’s substantial

rights. United States v. Olano, 507 U.S. 725, 732 (1993). The

term “plain” is “synonymous with ‘clear’ or, equivalently,

‘obvious’.” Id. at 734. “At a minimum, the Court of Appeals

cannot correct an error pursuant to Rule 52(b) unless the error is

clear under current law.” United States v. Brewer, 1 F.3d 1430,

1435 (4th Cir. 1993) (quoting Olano, 507 U.S. at 734) (emphasis in

the original)). Even if the defendant makes this required showing,

“Rule 52(b) leaves the decision to correct the forfeited error

within the sound discretion of the court of appeals, and the court

should not exercise that discretion unless the error seriously

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

proceedings.” Olano, 507 U.S. at 732 (quoting United States v.

Young, 470 U.S. 1, 15 (1985) (internal quotations omitted)).

Four of our sister circuits have determined that a

§ 924(c) conviction for possession of a firearm during and in

relation to a drug trafficking crime may be sustained under a

constructive possession theory. United States v. Maldonado-Garcia,

446 F.3d 227, 231 (1st Cir. 2006); United States v. Booker, 436
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F.3d 238, 241 (D.C. Cir. 2006); United States v. Lott, 310 F.3d

1231, 1247 (10th Cir. 2002); United States v. Mackey, 265 F.3d 457,

460 (6th Cir. 2001). Moreover, Gragg fails to cite a single case

that holds constructive possession may not be used to support a

conviction under the possession, as opposed to the use or carry,

prong of § 924(c). See United States v. Green, 254 F.3d 167, 170

(D.C. Cir. 2001). Accordingly, Gragg fails to show that any error

by the district court in instructing the jury was clear under

current law, and his first claim is without merit. 

Gragg next contends that the district court erred because

its instructions to the jury constructively amended the indictment.

The indictment charged Gragg with using and carrying and possessing

a firearm in violation of § 924(c); however, the district court

instructed the jury that Gragg could be convicted under § 924(c) if

he used or carried or possessed the firearm. It is well settled

that this type of disjunctive instruction and constructive charge

is appropriate where, as in this case, the statute at issue is

phrased disjunctively. See United States v. Montgomery, 262 F.3d

233, 242 (4th Cir. 2002). Hence, we reject Gragg’s contention.

Finally, Gragg contends that the district court abused

its discretion in denying his motion to withdraw his guilty pleas.

A defendant may withdraw a guilty plea before sentence is imposed

if “the defendant can show a fair and just reason for requesting

the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Six factors to be
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considered in granting or denying a motion to withdraw a guilty

plea are: 

(1) whether the defendant has offered credible evidence

that his plea was not knowing and voluntary, (2) whether

the defendant has credibly asserted his legal innocence,

(3) whether there has been a delay between the entering

of the plea and the filing of the motion, (4) whether

defendant has had close assistance of competent counsel,

(5) whether withdrawal will cause prejudice to the

government, and (6) whether it will inconvenience the

court and waste judicial resources. 

United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). 

The record reveals that the district court considered the

factors delineated in Moore and, contrary to Gragg’s contention,

did not abuse its discretion by denying his motion. Accordingly,

we affirm the judgment of the district court. We dispense with

oral argument as the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED