UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4302

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES EDWARD MILBOURNE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. Malcolm J. Howard,

District Judge. (CR-03-121-H)

Argued: February 3, 2005 Decided: May 11, 2005

Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished opinion. Judge Gregory wrote the opinion.

Judge Traxler wrote a separate opinion concurring in the result.

Judge Shedd wrote a separate concurring opinion. 

ARGUED: James Edward Todd, Jr., Research and Writing Specialist,

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for

Appellant. Christine Witcover Dean, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North

Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal

Public Defender, G. Alan DuBois, Assistant Federal Public Defender,

Raleigh, North Carolina, for Appellant. Frank D. Whitney, United

States Attorney, Anne M. Hayes, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
1

Milbourne maintained a separate residence but often stayed

with his girlfriend.

3

GREGORY, Circuit Judge:

James Edward Milbourne (“Milbourne”) appeals his conviction

for possession of a firearm by a felon, in violation of 18 U.S.C.

§ 922(g)(1) (Count I); possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count II); and

carrying a firearm during and in relation to the drug trafficking

crime set forth in Count II, and possession of a firearm in

furtherance of that drug trafficking crime, in violation of 18

U.S.C. § 924(c)(1) (Count III). On appeal, Milbourne asserts that

the Government violated his Fifth Amendment rights by

constructively amending the indictment, and challenges the

sufficiency of the evidence as to Count III. We affirm his

conviction.

I.

On November 16, 2002, several officers from the Raleigh Police

Department executed a search warrant at the residence of

Milbourne’s girlfriend, Katrina Ross (“Ross”).1

 When the officers

arrived, they made a forced entry into the residence and secured

seven adults and two children present in the residence. After

searching Milbourne, an officer found a “nickel” or “dime” bag of
2A “nickel” bag contains one (1) gram of marijuana and a

“dime” bag contains two (2) grams. J.A. 78. 

3Milbourne stipulated that this was the amount of marijuana in

the jacket, J.A. 36, however, as indicated by the Assistant United

States Attorney during oral argument, the 11.5 gram calculation

represents the combined amount of the marijuana present on

Milbourne’s person and in the jacket. The jacket contained

approximately 10 grams of marijuana and the remainder was found in

a nickel or dime bag on Milbourne’s person. 

4

marijuana on his person.2 Another officer found a semi-automatic

pistol between the mattress and box spring in Ross’s bedroom. The

officer questioned Milbourne about the gun. After verbally waiving

his Miranda rights, Milbourne admitted that he had previously

purchased the firearm from a man named Zollie Gibson (“Gibson”),

also present in the residence at the time of the search. Milbourne

told the officer that he had only used the gun once, after an

altercation that took place outside of his residence. Milbourne

had been previously convicted of a felony and his right to possess

a gun had not been restored. 

The officer also asked Milbourne if he had any contraband in

the residence. Milbourne directed the officer to a jacket in the

closet of Ross’s bedroom that contained bags amounting to 11.5

grams of marijuana.3 Milbourne admitted that he sold “an ounce or

two” per week and made about $175 in weekly profit. During the

search, the officers also found two marijuana cigarette butts, some

marijuana seeds, and plastic baggies.
4

The “eight-ball” contained approximately 2.8 grams of cocaine

base (crack). J.A. 120-21. 

5

In addition, the officers found an “eight-ball” of crack

cocaine in the kitchen.4 The testimony at trial indicated that

Gibson had dropped the cocaine just as the officers entered the

residence. Milbourne admitted that Gibson had brought the crack

cocaine over for Milbourne to sell, but stated that he had not

taken possession of the crack cocaine at the time of the search.

Milbourne was not charged with a crime in relation to the crack

cocaine and, at trial, an officer stated that the Government did

not have enough evidence to charge anyone with the cocaine. 

After the search, in an effort to cooperate with the police,

Milbourne made a phone call to a drug supplier and ordered an

amount of cocaine. The supplier was unable to make a timely

delivery and the investigation was terminated. 

At trial, Milbourne moved for a judgment of acquittal on Count

III, the charge of possession of a firearm in furtherance of the

drug trafficking crime of possession with intent to sell marijuana,

both at the close of the Government’s case and at the close of the

evidence. The district court denied both motions. Milbourne then

filed a motion for acquittal on Count III, which the district court

also denied. The district court sentenced Milbourne to

imprisonment for 120 months on Counts I and II to be served

concurrently, and to 60 months on Count III to be served
6

consecutively to the sentences on Counts I and II. This appeal

follows.

II.

A. Constructive Amendment of Indictment

Milbourne argues that the Government, in both its presentation

of evidence and argument, relied heavily upon evidence of cocaine

dealing and of drug dealing in general to establish the nexus

between possession of a firearm and drug dealing required by §

924(c). This, he argues, amounted to a constructive amendment of

Count III of the indictment, which charged him with possession of

a firearm in furtherance of the specified predicate drug crime of

possession with intent to distribute marijuana. Issues raised for

the first time on appeal are subject to plain error review. Fed.

R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725 (1993).

However, “constructive amendments of a federal indictment are error

per se, and under Olano, must be corrected on appeal even when not

preserved by objection.” United States v. Floresca, 38 F.3d 706,

714 (4th Cir. 1994) (en banc). 

The Fifth Amendment to the United States Constitution

guarantees that a criminal defendant may only be tried on charges

alleged in an indictment, and “only the grand jury may broaden or

alter the charges in the indictment.” United States v. Randall,

171 F.3d 195, 203 (4th Cir. 1999) (internal quotations and
7

citations omitted). A constructive amendment to an indictment

occurs when: either the government (usually during its

presentation of evidence and/or its argument), the court (usually

through its instruction to the jury), or both, broadens the

possible bases for conviction beyond those presented by the grand

jury. Floresca, 38 F.3d at 710. A constructive amendment is a

“fatal variance” because the indictment is altered “to change the

elements of the offense charged, such that the defendant is

actually convicted of a crime other than that charged in the

indictment.” United States v. Schnabel, 939 F.2d 197, 203 (4th

Cir. 1991). 

Not all differences between an indictment and the proof

offered at trial rise to the “fatal” level of a constructive

amendment. Randall, 171 F.3d at 203 (citing United States v. Redd,

161 F.3d 793, 795 (4th Cir. 1998)). When different evidence is

presented at trial but the evidence does not alter the crime

charged in the indictment, a “mere variance” occurs. Id. A mere

variance does not violate a defendant’s constitutional rights

unless it prejudices the defendant either by surprising him at

trial and hindering the preparation of his defense, or by exposing

him to the danger of a second prosecution for the same offense.

Id.

Section 924(c)(1)(A) of Title 18, the offense charged in Count

III of Milbourne’s indictment, prohibits a person from using or
8

carrying a firearm “during and in relation to a crime of violence

or drug trafficking crime,” and from possessing a firearm “in

furtherance of such crime.” 18 U.S.C. § 924(c)(1)(A) (2000).

Proof of a predicate offense is an essential element of a § 924(c)

violation. Randall, 171 F.3d at 205. The government does not have

to charge or convict the defendant of a predicate offense

separately, but if it so chooses, “it [is] not allowed through the

presentation of its evidence or its argument, and the district

court [is] not allowed through its jury instructions, to broaden

the bases of conviction to include [a] different § 924(c) predicate

offense.” Id. at 210. 

First, we address whether the district court constructively

amended the indictment. The district court’s jury instructions on

Count III of the indictment were as follows:

Count Three, carrying a firearm during a drug

trafficking crime. Count Three of the indictment charges

that on or about November 16, 2002 in the Eastern

District of North Carolina, the defendant Mr. Milbourne,

also known as Junebug, knowingly carried a Beretta .9-

millimeter semiautomatic pistol, during and in relation

to a drug trafficking crime for which he may be

prosecuted in a court of the United States, as set forth

in Count Two, and did possess said firearm in furtherance

of such drug trafficking crime, all in violation of Title

18, United States Code, Section 924(c)(1), another

federal law.

. . . 

For you to find Mr. Milbourne guilty of this crime,

you must be convinced that the government has proved each

of the following three elements beyond a reasonable

doubt.
9

First, that the defendant committed the crime

alleged in Count Two. That is, he possessed with intent

to distribute marijuana, and I instruct you that is a

drug trafficking crime. In other words, to consider and

to deliberate Count Three, the possession of a firearm

during or in relation to or furtherance of a drug

trafficking crime, you must have already found the

defendant guilty of Count Two because if you found the

defendant not guilty of Count Two, the drug trafficking

crime, you don’t consider Count Three. . . .

J.A. 243-44 (emphasis added). Thus, the district court judge

specifically instructed the jury that they had to find Milbourne

guilty of the drug trafficking crime alleged in Count II to find

him guilty on Count III, and that this drug trafficking crime was

possession with intent to distribute marijuana. Under this

instruction, the district court judge did not broaden the possible

bases for conviction beyond that presented to the grand jury.

However, as Floresca notes, the government can also

constructively amend the indictment through its presentation of the

evidence and/or its argument. 38 F.3d at 710. Thus, we look to

the Government’s evidence and argument. In the Government’s

opening statement, it described the discovery of both crack cocaine

and marijuana during the search and Milbourne’s admission to the

police that he had been selling marijuana. J.A. 24-25. In its

presentation of the evidence, the Government called Sergeant Craig

Haines (“Haines”), who assisted in the search. Regarding drugs,

the Government questioned Haines about: finding marijuana on

Milbourne’s person, id. at 65; the discovery of marijuana in the

bedroom in Ross’s apartment, id. at 72; the discovery of crack
10

cocaine on the kitchen floor and Milbourne’s statement that Gibson

brought the crack over for him to sell but that he had not taken

possession of it yet, id. at 78; and the failed attempt to have

Milbourne make a controlled purchase of cocaine, id. at 80. The

Government also called a forensic chemist and questioned her about

her testing on the crack cocaine. Id. at 120. 

During closing arguments, the Government, while discussing

Count III, mentioned crack cocaine several times. First, after

extensively discussing its proof on the crime of possession with

intent to distribute marijuana, it stated that Gibson, the same man

who Milbourne bought the gun from also brought crack cocaine over

for Milbourne to sell. Id. at 208-09. Second, when discussing why

Gibson had the gun, it stated that the jury could consider the

crack cocaine that Gibson brought over for Milbourne to sell. Id.

at 209-10. Third, in describing the scene in the house, it noted

that Gibson, who had the crack cocaine on his person, threw it down

on the kitchen floor when the police arrived. Id. at 210.

Finally, in its rebuttal argument, it responded to Milbourne’s

attorney’s question to the jury during his closing argument

regarding the Government’s motives in mentioning the crack cocaine,

by stating that it introduced the crack cocaine because it was

probative to show that Milbourne was a drug dealer. Id. at 230. 

The Government’s references to crack cocaine are not

substantial enough to broaden the possible bases of conviction to
5

Indeed, testimony was presented that Milbourne never took

possession of the crack cocaine and that the Government did not

charge Milbourne with a crime relating to the crack cocaine because

it did not have enough evidence against him.

6

Further support for such a reading comes from the

Government’s subsequent statements in closing: “You can consider

that the defendant bought the gun from another drug dealer for

$200. Why did he buy that gun from a drug dealer? He couldn’t

have it. Why did he get it from the drug dealer? It was to

further his drug trafficking operation.” J.A. 210.

11

include possession with intent to sell crack cocaine or another

drug trafficking crime involving crack cocaine.5

 The Government’s

evidence simply showed that a substance, which the forensic chemist

concluded was crack cocaine, was discovered in the search. Its

opening statement only mentioned that the crack cocaine was

discovered during the search. 

The only statement that could possibly be argued to broaden

the base for conviction occurred during the Government’s closing

argument when it mentioned in the context of Count III that the

jury could consider the crack cocaine that Gibson brought over for

Milbourne to sell. This statement could be seen as the Government

arguing to the jury that a nexus exists between the gun and selling

crack cocaine. However, the fairest reading of that statement in

context indicates that the Government was trying to show that

Gibson, the man Milbourne bought the gun from, was a drug supplier

and the gun was thus intended to be used in conjunction with

Milbourne’s drug crimes -- selling marijuana.6 Even if this

statement is read as the former, it is not enough to cause the sort
12

of structural defect in the trial mechanism equal to a constructive

amendment of the indictment. As noted in United States v.

Williams, 106 F.3d 1173 (4th Cir. 1997), a case in which the

defendant similarly argued that a constructive amendment of the

indictment had occurred, “[t]he actions complained of here occurred

wholly within the context of closing argument. It is doubtful at

best if any error occurred under Floresca in this case.” Id. at

1176. 

Here, the Government’s closing argument, considered as a

whole, clearly indicated to the jury that Count II, possession with

intent to distribute marijuana, was the predicate offense that it

had to find under § 924(c). Moreover, the district court’s

instructions explicitly stated as much. Thus, no constructive

amendment of the indictment occurred. 

B. Sufficiency of the Evidence

Milbourne contends that the district court erred in denying

his motions for judgment of acquittal on the violation of 18 U.S.C.

§ 924(c), in which he argued that insufficient evidence existed to

find beyond a reasonable doubt that he possessed the firearm in

furtherance of his possession with intent to deliver marijuana. In

reviewing the sufficiency of the evidence, this court must

determine whether, construing the evidence in the light most

favorable to the government, any reasonable trier of fact could

have found the defendant guilty beyond a reasonable doubt. United
7

Congress added this element to the statute in an apparent

response to the Supreme Court’s decision in Bailey v. United

States, 516 U.S. 137 (1995), which had found that possession of a

firearm was insufficient to sustain a conviction under § 924(c)’s

“use” element. Because the gun was not on Milbourne’s person,

“constructive possession” is at issue here. 

13

States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). The court

must “allow the government the benefit of all reasonable inferences

from the facts proven to those sought to be established” in making

this determination. Id.

As discussed, a § 924(c) conviction requires proof beyond a

reasonable doubt that a person: (1) committed a drug crime; and

either (2) used or carried a firearm during and in relation to that

crime; or (3) possessed a firearm in furtherance of that drug

crime. 18 U.S.C. § 924(c)(1)(A) (2000). The “possession in

furtherance” element is at issue here.7 In determining what

evidence is sufficient to establish a violation of § 924(c), the

statutory term “furtherance” should be given its plain meaning of

“‘[t]he act of furthering, advancing, or helping forward.’” United

States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (quoting

Webster’s II New College Dictionary 454 (1999)). Therefore, “§

924(c) requires the government to present evidence indicating that

the possession of the firearm furthered, advanced, or helped

forward a drug trafficking crime.” Id. Whether the firearm served

such a purpose is a question of fact. Id.
14

In Lomax, the court adopted a series of factors set out by the

Fifth Circuit in its decision in United States v. Ceballos-Torres,

218 F.3d 409 (5th Cir. 2000), that might lead a fact finder to

conclude that a connection existed between a defendant’s possession

of a firearm and his drug trafficking crime. Lomax, 203 F.3d at

705. These factors include, but are not limited to: “the type of

drug activity that is being conducted, accessibility of the

firearm, the type of weapon, whether the weapon is stolen, the

status of the possession (legitimate or illegal), whether the gun

is loaded, proximity to drugs or drug profits, and the time and

circumstances under which the gun is found.” Id. (quoting

Ceballos-Torres, 218 F.3d at 414-15). Clearly, “mere presence” of

a firearm at the scene is not enough to convict. See United States

v. Sparrow, 371 F.3d 851, 853 (3d Cir. 2004); United States v.

Mackey, 265 F.3d 457, 462 (6th Cir. 2001); Ceballos-Torres, 218

F.3d at 414.

First, looking to the type of drug-activity being conducted,

a relatively small amount of marijuana, 11.5 grams, was found in

the jacket in Ross’s bedroom. Milbourne told the police that he

only sold one to two ounces of marijuana per week, a statement not

discredited with any testimony at trial. This is a small amount of

drugs in relation to other cases in which courts have found a §

924(c) violation. See Lomax, 293 F.3d at 705 (nineteen hits of

crack found on defendant’s person while he was waiving gun); United
15

States v. Krouse, 370 F.3d 965, 967 (9th Cir. 2004) (86.5 grams of

cocaine, 150 lbs. of marijuana); Ceballos-Torres, 218 F.3d at 411

(569.8 grams of cocaine). 

Second, looking to the accessibility of the weapon, it was

between the mattress and box spring in Ross’s bedroom. Thus, while

it could be retrieved with little effort, it was not within

immediate reach. Third, the gun was Beretta 9 millimeter

semiautomatic pistol, which is a common type of gun. Fourth,

Milbourne bought the gun from Gibson but no evidence was introduced

as to whether it was stolen. Fifth, Milbourne did possess the gun

illegally because he had been previously convicted of a felony.

Sixth, the gun was loaded. 

Seventh, looking to the proximity of the gun to the drugs, the

gun was found in the bed and the drugs were found in the pocket of

a jacket in the closet. Thus, they were in the same room but not

together in the same place or within immediate reach of one

another, although they could be picked up together with little

effort. Finally, looking to the time and circumstances under which

the gun was found, it was found during the execution of the search

warrant and not under circumstances indicating that it was in use

during the middle of a drug transaction.

After taking these factors into consideration, they do not all

point to the gun being used in furtherance of the drug crime. But

they also do not dispel the Government’s theory that it is
8

Indeed, the court has indicated that the Ceballos-Torres

factors are only a part of our analysis in determining whether a

gun is used in furtherance of a drug crime. See Lomax, 293 F.3d at

705 (noting that the Ceballos-Torres factors may lead a fact finder

to conclude that the necessary nexus between a firearm and a drug

trafficking activity exists but that our analysis is not limited to

these factors alone); see also Krouse, 370 F.3d at 968 (recognizing

limits of factors in certain cases). 

9

The district court judge correctly instructed the jury on

this definition of a “possession in furtherance.” J.A. 244-45. 

16

reasonable that the gun could have been so used.8 Given that it

was in same room, Milbourne could have grabbed it and put it in the

jacket on his way out of the house for a drug sale. Such an

inference is clearly in accord with our holding in Lomax that §

924(c) requires the government to present evidence that the

possession of the firearm furthered, advanced, or helped forward a

drug trafficking crime.9 292 F.3d at 705. In sum, when construing

this evidence in the light most favorable to the Government, as we

must do, a reasonable fact finder could have found beyond a

reasonable doubt that Milbourne’s possession of the gun was in

furtherance of the drug crime.

III.

For the reasons stated herein, we affirm Milbourne’s

conviction.

AFFIRMED
17

TRAXLER, Circuit Judge, concurring in the result:

I fully concur in the majority’s analysis of the constructive

amendment issue, and I concur in result reached by my friends as to

the section 924(c) charge. I write separately, however, because I

believe that the evidence supporting the section 924(c) conviction,

viewed in the light most favorable to the government, easily is

sufficient to support the jury’s verdict.

As we have made clear, section 924(c) “requires the government

to present evidence indicating that the possession of a firearm

furthered, advanced, or helped forward a drug trafficking crime.

However, whether the firearm served such a purpose is ultimately a

factual question.” United States v. Lomax, 293 F.3d 701, 705 (4th

Cir. 2002).

When making this factual determination, the fact finder

is free to consider the numerous ways in which a firearm

might further or advance drug trafficking. For example,

a gun could provide a defense against someone trying to

steal drugs or drug profits, or it might lessen the

chance that a robbery would even be attempted.

Additionally, a gun might enable a drug trafficker to

ensure that he collects during a drug deal. And a gun

could serve as protection in the event that a deal turns

sour. Or it might prevent a transaction from turning

sour in the first place. Furthermore, a firearm could

help a drug trafficker defend his turf by deterring

others from operating in the same area.

Id. 

In Lomax, this court specified some of the factors that a jury

might rely upon to find that a gun furthered a drug trafficking

crime, such as the nature of the drug activity at issue, the kind
*The majority states that the handgun possessed by Milbourne

is a common type of gun, a fact that the majority apparently

believes points away from the conclusion that the gun was possessed

in furtherance of a drug-trafficking crime. Since there is no

evidence in the record about the ubiquity of 9-mm semi-automatic

weapons, I am not certain of the propriety of this observation.

But if such observations are proper in this case, I would note by

belief that Milbourne’s firearm is the weapon of choice among drug

dealers.

18

of gun, the general accessibility of the gun, and the proximity of

the gun to drugs or drug proceeds. See id. This list of factors,

however, is not exhaustive, and we have never required that any

particular number of them must point towards a connection between

the gun and the crime before a conviction could be sustained.

Applying the Lomax standards to the evidence presented at

trial, I think the evidence was clearly enough to permit the jury

to conclude that Milbourne, an admitted drug dealer, possessed the

gun in furtherance of the drug-trafficking crime alleged in count

two of the indictment. During the search of the apartment, law

enforcement officers found Milbourne’s jacket in the closet of the

master bedroom that Milbourne shared with his girlfriend. In the

pocket of the jacket was a plastic bag that contained numerous

small plastic baggies, each of which contained a small quantity of

marijuana. Under the mattress in that bedroom was a loaded 9-mm

semi-automatic pistol that Milbourne admitted belonged to him and

that he had bought from his drug supplier.* See United States v.

White, 875 F.2d 427, 433 (4th Cir. 1989) (“[I]t is not unreasonable

to recognize that weapons have become tools of the trade in illegal
19

narcotics operations.” (internal quotation marks omitted)).

Milbourne is a convicted felon, which makes it illegal for him to

possess a pistol, and the loaded gun was easily accessible to

anyone who knew where it was hidden. In my view, this evidence

could easily support a conclusion that Milbourne used the pistol to

protect himself and the drugs he was selling. The government’s

evidence was thus more than enough to support Milbourne’s section

924(c) conviction.
20

SHEDD, Circuit Judge, concurring:

I concur with the result reached by Judge Gregory and with

much of his analysis. However, I believe the issue of the

possession of the firearm “in furtherance of” a federal drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) is not

a close call at all. We have previously recognized that firearms

are tools of the drug trade, see United States v. Ward, 171 F.3d

188, 195 (4th Cir. 1999); United States v. Burgos, 94 F.3d 849, 886

(4th Cir. 1996) (en banc); United States v. White, 875 F.2d 427,

433 (4th Cir. 1989), and that a jury could reasonably conclude that

a firearm kept near the location of drugs is for the personal

protection of a defendant as a drug dealer or for the protection of

his inventory, see United States v. Lomax, 293 F.3d 701, 705 (4th

Cir. 2002).