Case Information
*1 Before NIEMEYER and MICHAEL, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, Jeanette Dorаn Brooks, Research & Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Cаrolina, for Appellee. *2 Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).
OPINION
PER CURIAM:
Michael Lee Lowery was сonvicted by jury for maintaining a place for the purpose of manufacturing, distributing, and using a controlled substance, 21 U.S.C. § 856 (2000) (Counts One, Five, and Eight); possession with thе intent to distribute marijuana and cocaine, 21 U.S.C. § 841(a)(1) (2000) (Counts Two and Six); possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1) (Count Nine); possession of a firearm as a convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Counts Three, Seven, and Ten); and possession of a firearm in furtherance of the drug trafficking crime charged in Count Two, 18 U.S.C. § 924(c)(1) (2000) (Cоunt Four). The district court sentenced Lowery to concurrent sentences of imprisonment of 262 months for Counts Two, Three, Six, Seven, and Ten; 240 months for Counts One, Five, and Eight; and 120 months for Count Nine. Additionally, the district court imposed a consecutive sixty-month sentence on Count Four, for an aggregate sentence of 322 months. Lowery asserts three errors at trial. Finding no reversible error, we affirm.
First, Lowery asserts that the district court violated Fed. R. Civ. P. 30 when it revised the jury instruсtions during his closing argument. He describes that the district court provided a conjunctive charge at the charge conference prior to closing arguments and then modified the instruction during closing arguments. Lowery contends that the conjunctive instruction — he must possess marijuana and coсaine with the intent to distribute, to be found guilty of the offense charged in Counts Two and Six of the indictment — is a correct statement of law. This court reviews dе novo whether a district court has properly instructed a jury on the statutory elements of an offense. See United States v. Ellis , 121 F.3d 908, 923 (4th Cir. 1997).
The statute charged in Counts Two and Six, 21 U.S.C. § 841(a)(1),
сriminalizes the possession of any one of numerous controlled sub-
*3
stances. Despite the fact that a defendant can be guilty of a violation
of § 841(a)(1) for possession with intent to distribute any one of many
illegal substances, when, as here, a defendant is charged with posses-
sion with intent to distributе more than one such substance, "federal
pleading requires that an indictment charge in the conjunctive to
inform the accused fully of the charges."
United States v. Klein
, 850
F.2d 404, 406 (8th Cir. 1988) (internal quotation marks and citations
omitted);
see Turner v. United States
,
Moreover, the district court’s belated recognition that the proposеd jury instruction required modification does not entitle Lowery to relief. Even in the face of a Rule 30 error, Lowery does not show that the district court’s ruling on the jury instruction precluded him from making any legally sufficient argument. "A violation of Rule 30 requires reversal only when the defendant can show actual prejudice." United States v. Horton , 921 F.2d 540, 547 (4th Cir. 1990).
Second, Lowery contends that the district court abused its discre-
tion by directing the jury to resume deliberations after it returned a
verdiсt that was incomplete as to Counts Two and Six. A jury may
"remain undischarged and retain its functions, though discharge may
have been spoken by the court, if, аfter such announcement, it
*4
remains an undispersed unit, within control of the court, with no
opportunity to mingle with or discuss the case with others, and partiс-
ularly where . . . the very case upon which it has been impaneled is
still under discussion by the court, without the intervention of any
other business."
Summers v. United States
,
Third, Lowery challenges the sufficiency of the evidence proving
his guilt as to Count Four, possession of a firearm in furtherance of
a drug trafficking crime. In reviewing a sufficiency claim on appeal,
this court must sustain the verdict if the record contains substantial
evidence, taking the view most favorable to the Government, to sup-
port it.
See Glasser v. United States
,
To establish a violation of 18 U.S.C. § 924(c)(1), the government must prove that the defеndant (1) used or carried a firearm during and in relation to a crime of violence or drug trafficking crime; or (2) pos- sessed a gun in furtherance of a crime of violence or drug trafficking crime. 18 U.S.C. § 924(c). This court has stated that the "statutory term ‘furtherance’ should be given its plain meaning" and, thus, "§ 924(c) requires thе government to present evidence indicating that the possession of a firearm furthered, advanced, or helped forward a drug trafficking crime." United States v. Lomax , 293 F.3d 701, 705 (4th Cir.), cert. denied , 123 S. Ct. 555 (2002). The underlying drug *5 conviction is not in dispute. United States v. Hill , 971 F.2d 1461, 1464 (10th Cir. 1992).
Here, the rifles were found in Lowery’s ten-by-twelve-foot kitchen in close proximity to drugs and to other equipment and supplies used in drug trafficking. The time and circumstances under which the rifles were found provide further support for the jury’s verdict. When police officers arrived at Lowery’s home on March 16, 2000, he had cocaine and marijuana ready for distribution and $4799 in his wallet. The accessibility and visibility of the rifles supports a finding that the rifles furtherеd Lowery’s drug trafficking business by deterring the theft of drugs or profits, enabling Lowery to collect payment for drugs, and preventing transactions from souring. See Lomax , 293 F.3d at 705. We find that the evidence was sufficient to sustain Lowery’s conviction for possession of a firearm in furtherance of a drug traf- ficking crime.
Accordingly, wе affirm Lowery’s convictions and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argu- ment would not aid the decisional process.
AFFIRMED