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No. 05-4607
No. 05-4631
Appeals from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, Chief District
Judge. (CR-04-50)
Argued:
Decided:
I.
On August 11, 2003, law enforcement officers executed a search
warrant on Clyburn's residence.
master bedroom.
Clyburn
also
stated
that
he
had
manufactured
or
six
grams,
of
pseudoephedrine
on
each
occasion.
June
2,
2004,
law
enforcement
officers
returned
to
Clyburn
Clyburn was
arrested again.
Count One
Count Six
charged him with on or about August 11, 2003, knowingly using and
carrying a firearm during and in relation to, and possessing a
firearm in furtherance of a drug trafficking crime in violation of
18 U.S.C. 924(c)(1).
Clyburn
received
jury
trial.
At
the
close
of
the
Count
Six.
advisement.
The
district
court
this
motion
under
took
subsequently
moved
for
judgment
of
acquittal
notwithstanding the verdict for Counts One and Six, claiming that
The
district court denied the motion as to Count One and granted the
motion as to Count Six.
II.
Where, as here, a motion for judgment of acquittal is based
upon insufficiency of the evidence, we review the district court's
decision de novo regardless of whether the district court granted
or denied the motion.
(review
of
denial
of
judgment
in
the
light
most
of
acquittal
based
upon
favorable
to
the
government,
any
A.
The government claims that, because it presented sufficient
evidence in its case-in-chief2 from which the jury could have found
beyond a reasonable doubt that Clyburn possessed a firearm in
furtherance of a drug trafficking crime, the district court erred
in granting Clyburn's motion as to Count Six.
We agree.
18 U.S.C.
under
924(c).3
Clyburn
does
not
challenge
those
When considering the evidence, however, the fact finder may take
into account any of the myriad ways that a firearm might further or
advance
the
drug
trafficking
crime,
including,
for
example,
Id.
Moreover,
shotgun
in
methamphetamine.
home
used
for
the
manufacture
of
bulk
of
the
methamphetamine.
associated
with
the
manufacture
of
nor
common
suggests
that
methamphetamine
manufacturers making the drug for their own use, rather than
distribution, arm themselves for protection.
and
that
the
methamphetamine
was
in
closed
the fact that his possession was illegal because he was a drug user
does not aid the analysis of whether the firearm was used in
that the shotgun was found during a raid on his home in a rural
part of southwest Virginia, an area where households typically
contain firearms, at a time when no drug manufacturing or use was
taking place.
The facts cited by Clyburn do not compel the conclusion that
he possessed the shotgun for purposes other than furthering his
drug
trafficking
conclusion.
crimes,
even
if
they
could
support
such
in
recreational
hunting.
Finally,
the
fact
that
the
the
different,
methamphetamine.
reasonable
"'[I]f
interpretations,
interpretation to believe.'"
the
the
evidence
jury
supports
decides
which
United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997)).
the
present
case,
the
jury
decided
11
to
believe
that
In
Clyburn
B.
On cross-appeal, Clyburn claims that the district court erred
in denying his motion as to Count One because the government
presented insufficient evidence from which the jury could have
found
beyond
reasonable
doubt
that
Clyburn
engaged
in
containing
detectable
amount
of
methamphetamine.
We disagree.
George
Harper
and
had
been
manufacturing
the
drug
for
12
after his arrest in August 2003, he had told the Lovells what he
needed to manufacture methamphetamine, that they had provided the
materials, and that he had manufactured methamphetamine using the
materials provided by them on multiple occasions.
Based
on
this
evidence,
the
jury
reasonably
could
have
conspiracy
methamphetamine.
with
the
common
objective
of
manufacturing
the conspiracy knowing its full scope or all of the other members
and without every member participating in all of its activities or
for the entire length of its existence.
The jury reasonably could have inferred that the object of the
conspiracy was to manufacture that amount of methamphetamine.8
III.
For the foregoing reasons, we reverse the district court's
grant of Clyburn's motion for judgment of acquittal notwithstanding
the verdict as to Count Six of the indictment and remand to the
district court to reinstate the jury's verdict of guilty.
We
write
separately
to
express
my
reasons
for
affirming
methamphetamine
residence.
for
J.A. 191-92.
party
they
were
hosting
at
their
J.A. 213-14.
of
methamphetamine.
J.A.
192,
203,
213-14.*
Thus,
at
least
fifty
grams
of
mixture
containing
The
majority
proceeds,
however,
to
delve
into
other
In so doing, the
girlfriends
Lovells.
unidentified
acquaintances,
Harper,
and
the
In
effect,
of
the
majority
simply
collapses
distinct
instances
Whether there is a
and
goals.
(internal
quotation
marks
and
citations
omitted)).
I otherwise concur in the opinion and the judgment.
16