IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10078

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

LARRY EDWARD PETERSEN,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:07-CR-337-ALL

Before JONES, Chief Judge, and HIGGINBOTHAM and ELROD, Circuit

Judges.

PER CURIAM:

*

Appellant Larry Petersen was convicted of being a felon in possession of

a firearm and possession with intent to distribute 50 or more grams of

methamphetamine. On appeal, he raises three issues: (1) whether the district

court erred in not instructing the jury that to reach a conviction it had to find

Petersen knew the quantity of methamphetamine he allegedly possessed;

(2) whether the district court erred in finding that Petersen’s prior Texas

United States Court of Appeals

Fifth Circuit

F I L E D

June 23, 2010

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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convictions for evading arrest by vehicle is a crime of violence under U.S.S.G.

§ 4B1.2; and (3) whether the indictment was constructively amended by the

district court when it charged the jury that it could convict for possession of “a

firearm” rather than the firearm specified in the indictment. The first two

issues are clearly foreclosed by circuit precedent. The third issue is clearly

resolved by the trial record and precedent. For the reasons stated below, we

affirm.

On the first issue, the Appellant relies on Flores-Figueroa v. United

States, 129 S. Ct. 1886 (2009), to argue that the district court erred in failing to

instruct the jury that it had to find that Petersen knew the quantity of drugs he

possessed. See 21 U.S.C. § 841. This court held otherwise in a pre-Flores case,

United States v. Gamez-Gonzalez, 319 F.3d 695 (5th Cir. 2003). We reaffirmed

that holding post-Flores in United States v. Betancourt, 586 F.3d 303, 308-09

(5th Cir. 2009) (“A common-sense, natural reading of § 841 leads to the

inevitable conclusion that Congress did not intend for the word ‘knowingly’ in

§841(a) to modify language in § 841(b).”).

The Appellant’s second argument is that the district court erred in finding

that his prior Texas conviction for evading arrest by vehicle is a “crime of

violence” for purpose of calculating his Guidelines sentence. However, he

concedes that this argument is foreclosed by United States v. Harrimon, 568 F.3d

531, 534 (5th Cir. 2009).

The Appellant’s third contention is that the district court constructively

amended the indictment by instructing the jury that it could convict for

possession of any firearm, rather than the specific firearm identified in the

indictment. Count One of the indictment alleged that Petersen possessed “a

Ruger, model Security Six, .357 caliber revolver, bearing serial number 159-

91743. . . .” Petersen was arrested following a high-speed chase. In the grass

near where Petersen’s truck had come to a stop, the police found a cylinder

containing methamphetamine that Petersen admitted was his. Eight days later,

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a citizen spotted a .357 caliber Ruger revolver beside the highway near where

Petersen had been apprehended. The police later identified it as a stainless

Ruger .357 magnum revolver with wooden grips, bearing serial number 159-

91743. At trial, the government presented, in part as intent evidence under

Federal Rule of Evidence 404(b), a video of Petersen’s admission that he

possessed several firearms, including a .38 caliber Ruger that was brushed

nickle with wooden grips. Petersen claimed to have tossed the .38 caliber gun

in a dumpster several days earlier. A .357 revolver appears nearly identical to

a .38 revolver and the two guns use the same ammunition. The government’s

theory was that Petersen or his passenger tossed the gun out of the truck during

the chase and shortly before he was stopped. The prosecution argued that

Petersen’s admission that he possessed a .38 caliber Ruger was relevant because

he had likely mistaken the .357 caliber revolver for the .38 caliber model.

The district court allowed the video evidence to be introduced, but

instructed the jury that it could not consider the evidence in deciding whether

Petersen committed the acts charged in the indictment. However, the district

court instructed that if the jury found Petersen committed the acts charged in

the indictment, the jury could then consider the evidence for the limited purpose

of determining whether Petersen had the state of mind or intent necessary to

commit the crimes.

During deliberations, the jury sent a written question to the judge, asking:

Count 1 Question

First Element

Is the charge related specifically to the possession of the .357 gun in

evidence or to the possession of any gun?

The court responded to the question as follows:

You are hereby instructed that the felon in possession statute

requires the government to prove beyond a reasonable doubt that

one, Defendant possessed a firearm on or about October 11, 2007.

Two, he was a convicted felon at the time of such alleged possession.

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And three, the firearm had traveled in or [a]ffected interstate

commerce. You are further referred to the instruction pertaining to

this count on page 11 of the Court’s instructions to the jury.

In support of his constructive amendment claim, Petersen argues that the

indictment alleged that he possessed one specific firearm, a .357 caliber revolver,

but the evidence and the district court’s instructions in response to the jury’s

question authorized the jury to convict for possession of other firearms—firearms

that Petersen admitted to possessing. We disagree. The district court’s response

to the jury’s question incorporated its previous instruction on the indictment

found on page 11:

Title 18, United States Code, Section 922(g)(1), make it a crime for

a convicted felon to possess a firearm. For you to find Defendant

Petersen guilty of this crime, you must be convinced that the

government has proved each of the following beyond a reasonable

doubt:

First: That Defendant knowingly possessed a firearm,

as charged. The term “firearm” means any weapon that

will or is designed to or may readily be converted to

expel a projectile by the action of an explosion.

In addition, the district court gave careful and repeated instructions on the

indictment and limiting the use of 404(b) evidence. The jury is presumed to

follow the district court’s instructions. See Zafiro v. United States, 506 U.S. 534,

540 (1993). In this case, the district court’s instructions were sufficient for the

jury to convict based on the allegations in Count One of the indictment.

Further, even if the jury did not follow the district court’s instructions and

believed that it could have convicted for possession of either the .357 gun, as

charged, or a .38 gun, as evidence suggested Petersen possessed, this variance

does not amount to a constructive amendment. See United States v. Guidry,

406 F.3d 314, 322 (5th Cir. 2005). No constructive amendment arises where the

evidence proves facts different from those alleged in the indictment, but does not

modify an essential element of the charged offense. United States v. Munoz,

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150 F.3d 401, 417 (5th Cir. 1998). The appellant concedes that the caliber and

serial number of the gun are not essential elements of the charged offense.

Petersen has failed to demonstrate a material constructive amendment that

would require vacating his conviction.

Conclusion

For the reasons stated above, we affirm.

AFFIRMED.

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