United States of America v.  Laura Lynn Groce

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4112 
LAURA LYNN GROCE,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CR-02-65)
Argued: December 3, 2004
Decided: February 28, 2005
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed in part; vacated and remanded in part by published opinion.
Judge Luttig wrote the opinion, in which Judge Traxler and Judge
King joined.
COUNSEL
ARGUED: William Edmund Loose, Asheville, North Carolina, for
Appellant. Donald David Gast, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee. ON BRIEF: Robert J. Conrad, Jr., United
States Attorney, Charlotte, North Carolina, for Appellee.

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OPINION
LUTTIG, Circuit Judge:
Appellant Laura Lynn Groce pled guilty to bank robbery under 18
U.S.C. § 2113(a). Thereafter, she proceeded to trial on the charge of
using or carrying a firearm during and in relation to, or possessing a
firearm in furtherance of, the bank robbery, in violation of 18 U.S.C.
§ 924(c)(1)(A). Following the denial of her motion for judgment of
acquittal, Groce was convicted by the jury. Over Groce’s objection,
the district court adopted the finding of the Presentence Investigation
Report (PSR) that she had "brandished" a firearm during and in rela-
tion to a crime of violence, and sentenced her accordingly. Groce
appeals from the denial of her motion for acquittal and from her sen-
tence. We affirm Groce’s conviction, but vacate her sentence and
remand for further proceedings.
I.
On July 26, 2002, Groce entered BB&T Bank in Murphy, North
Carolina. J.A. 22-24. Groce approached the teller and gave her a note
on which appeared the following text: "Please place $20,000 in this
bag. I want old bills. Hundreds and 20s. Do not tell anybody. Do not
trip the alarm. I have a gun. Thank you." J.A. 29. Groce took approxi-
mately $3000 from the teller, placed it in her purse, and walked out
the door. J.A. 32-33. The teller did not see a gun while Groce was in
the bank. J.A. 35. Groce’s codefendant, Pamela Scholes, drove her
away from the bank. J.A. 87.
Within minutes, the teller gave the police a complete description of
Groce’s car and the direction it proceeded from the bank, and the
police stopped Scholes and Groce. J.A. 87. The officers who appre-
hended Groce searched her car and found the purse which contained
the stolen money. J.A. 30, 45. The officers also found a pistol inside
the purse. J.A. 45-46.
Groce was subsequently questioned by Agent Mark Aysta of the
FBI. While Groce admitted that she had robbed the bank and that she
had placed the gun in the car, Aysta testified that Groce told him that
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"she did not take it [the gun] into the bank." J.A. 73. He further testi-
fied that Groce explained that after she was pulled over and the police
began questioning her partner, she "began to stuff the cash . . . into
the glove compartment [where she claimed the gun was located]. She
was afraid that the gun would go off as she was attempting to stuff
the money into the glove compartment, so she removed the gun from
the glove compartment and put it in the bag." J.A. 68. One of the
arresting officers testified that he observed Groce while his partner
was questioning Groce’s accomplice and that she "couldn’t have gone
in the glove box." J.A. 53. At trial, Groce changed her explanation,
testifying that she placed the gun in the bag "sometime between the
time I got into the car and I got stopped." J.A. 86.
Groce sought a judgment of acquittal, claiming that the indictment
referenced the statutory citation for the prohibition of "brandishing"
a firearm, 18 U.S.C. § 924(c)(1)(A)(ii), but that the government did
not present evidence to the jury to prove that the firearm was bran-
dished, as opposed to simply used, carried, or possessed. The district
court concluded that brandishing was only a sentencing factor that
need not be presented to the jury, and denied Groce’s motion. After
the jury returned its verdict, the district court sentenced Groce to 84
months imprisonment pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), which
provides for a seven-year minimum sentence if a firearm is "bran-
dished."1 J.A. 8, 167-69. Groce now appeals that sentence and the
denial of her motion for acquittal.
II.
Groce first contends that the district court erred by enhancing her
sentence pursuant to section 924(c)(1)(A)(ii) because it failed to make
a factual finding that Groce "brandished" a firearm during the rob-
bery. See 18 U.S.C. § 924(c)(1)(A) & (ii) ("[A]ny person who, during
and in relation to any crime of violence . . . uses or carries a firearm,
or who, in furtherance of any such crime, possesses such a firearm,
shall, in addition to the punishment provided for such crime of vio-
lence . . . if the firearm is brandished, be sentenced to a term of
1The United States Sentencing Guidelines direct the district court to
sentence individuals who violate § 924(c)(1)(A)(i) or (ii) to the manda-
tory minimum sentence in the statute. U.S.S.G. § 2K2.4(b) (2004).
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imprisonment of not less than 7 years" (internal division omitted)).
"Brandish" is defined as follows:
[T]he term "brandish" means, with respect to a firearm, to
display all or part of the firearm, or otherwise make the
presence of the firearm known to another person, in order
to intimidate that person, regardless of whether the firearm
is directly visible to that person.
18 U.S.C. § 924(c)(4) (emphasis added). Groce agrees that, if the gun
had been present in the bank, the presentation of the note referencing
the gun would constitute the "otherwise mak[ing] [of] the presence of
the firearm known to another person" within the meaning of subsec-
tion (c)(4). She contends, however, that she did not carry the gun into
the bank and therefore her note could not make the presence of the
gun (as opposed, presumably, to its existence) known to those persons
inside the bank. Groce further argues that neither the district court nor
the jury ever concluded that the gun was present in the bank.
The government first contends that even if Groce is correct that the
gun remained at all times in the car, the gun was nonetheless "bran-
dished" within the meaning of the statute. We do not agree. Because
the word "presence" is not defined by the statute, the plain meaning
and the context in which the word appears provide our best guide to
its meaning. See King v. St. Vincent’s Hospital, 502 U.S. 215, 221
(1991)("[T]he meaning of statutory language, plain or not, depends on
context."). The statute defines a brandish as occurring when an indi-
vidual takes one of two courses of action: either the individual "dis-
play[s] all or part of the firearm," or the individual "otherwise
make[s] the presence of the firearm known." Because "otherwise"
means "in a different way or manner," Webster’s Third New Int’l Dic-
tionary 1598 (1986), the most straightforward reading of the full stat-
ute is that the display of all or part of a firearm is one way, of which
there are others, by which one may "make the presence of the firearm
known." 18 U.S.C. § 924(c)(4). In such a context, the best reading of
the word "presence" is the fact or condition of being "in view or at
hand," because the fact that a gun is in view or at hand is exactly what
the display of a gun makes known. Webster’s Third New Int’l Dictio-
nary 1793 (1986).
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Our interpretation is further supported by the requirement that the
presence of the firearm be made known "in order to intimidate
[another] person." 18 U.S.C. § 924(c)(4). The obvious way of intimi-
dating a person during the commission of a crime is not to make it
known that a gun exists somewhere, but, rather, that the gun is present
"at hand" such that it could be used.
Even if we could not conclude, on the basis of the language of the
statute, that the requirement of "presence" required that the gun actu-
ally be "at hand," the term "presence" certainly does not unambigu-
ously include situations where the gun is not at hand. Thus, the rule
of lenity would dictate the result that we reach. See Scheidler v.
NOW, Inc., 537 U.S. 393, 409 (2003) ("When there are two rational
readings of a criminal statute, one harsher than the other, we are to
choose the harsher only when Congress has spoken in clear and defi-
nite language" (quoting McNally v. United States, 483 U.S. 350, 359-
60 (1987))).
Because we define "presence" as "in view or at hand," Groce can-
not have made the gun’s "presence" known to the teller if the gun was
in fact not in view or at hand, but was in her car. Thus, Groce’s mini-
mum sentence for a "brandish" could only be enhanced upon a finding
that the gun was in the bank with her, either on her person or close
at hand.
The government argues that even if the gun must have been on
Groce’s person to support a finding that the gun was brandished, both
the jury’s verdict and the PSR — adopted by the district court — nec-
essarily rested on such a finding. But, as to the PSR, the government
points to no factual conclusion that necessarily requires that the gun
was ever present in the bank. Although the government is correct that
the PSR and the district court both concluded that the statute for bran-
dishing provided the appropriate minimum sentence, J.A. 164, 185,
neither clarified whether that legal conclusion rested on a factual find-
ing that the gun was with Groce in the bank, or on what we have con-
cluded is an error of law (i.e., the belief that a brandish could occur
even if the gun was in the car). The district court, then, cannot be said
to have made a factual finding that a brandish, as that term is properly
understood, occurred.
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Likewise, the jury’s verdict that Groce did use, carry, and possess
a gun did not require the jury to find that the gun was in the bank,
rather than in the car. The jury was instructed, in relevant part, only
that
[i]n considering whether there was active use of the firearm,
you may consider evidence, if any, that the firearm was dis-
played or bartered or specifically referred to. In addition, the
evidence must show that the firearm was carried . . . during
or in relation to the crime of bank robbery. To carry a fire-
arm means to have knowing possession or transportation of
the firearm in some manner.
J.A. 142. Plainly, the jury could have found that the evidence showed
that Groce had knowing possession of a gun, to which she specifically
referred in her note, during or in relation to a bank robbery even if the
jury believed that Groce’s gun remained in her car to assist in her
escape.
Because neither the district court nor the jury necessarily con-
cluded that the gun was in the bank, Groce’s sentence for brandishing
a gun must be vacated, and the case remanded for a determination of
whether the gun was in fact in the bank when the note was presented.2
2Groce maintains for the first time on appeal that Blakely v. Washing-
ton, 124 S. Ct. 2531 (2004), entitles her to a jury determination of
whether the gun was brandished. We do not agree. Section
924(c)(1)(A)(i) itself does not set a maximum sentence for the use, carry,
or possession of a gun absent a brandish, but rather sets a mandatory
minimum for any sentence rendered under that subsection. The court’s
application of the seven-year mandatory minimum sentence based on
judicial fact finding thus did not result in a sentence above the otherwise-
applicable statutory maximum and was not error. See Harris v. United
States, 536 U.S. 545, 568 (2002) (holding, post-Apprendi, that "[b]asing
a 2-year increase in the defendant’s minimum sentence on a judicial find-
ing of brandishing does not evade the requirements of the Fifth and Sixth
Amendments"). The factual conclusion that the gun was brandished did
result in the imposition of a sentence which is higher than the five-year
maximum sentence which was available under the guidelines for the use,
carry, or possession of a gun absent a brandish. However, to the extent
this increase in Groce’s sentence is problematic under United States v.
Booker, 125 S. Ct. 738 (2005), any problem will be remedied when the
district court resentences under advisory guidelines.
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III.
Groce next claims that she was entitled to a judgment of acquittal
because the jury did not find that she had brandished the gun, but only
that she used, carried, and possessed the gun. She concedes that
under Harris, brandishing generally "need not be alleged in the indict-
ment, submitted to the jury, or proved beyond a reasonable doubt,"
because it is not an element of the offense. Harris, 536 U.S. at 568.
However, she claims that because her indictment cited the statutory
subsection that includes the enhancement for "brandishing," the gov-
ernment was required to prove the "brandish" to the jury. See J.A. 11;
J.A. 140-41. This argument is unavailing. The Federal Rules of Crim-
inal Procedure specifically provide that "[u]nless the defendant was
misled and thereby prejudiced, neither an error in a citation nor a cita-
tion’s omission is a ground to dismiss the indictment or information
or to reverse a conviction." Fed. R. Crim. P. 7(c)(3). See also United
States v. Massuet, 851 F.2d 111, 116 (4th Cir. 1988) ("‘[T]he law at
present regards citations to statutes or regulations as not a part of the
indictment. A conviction may be sustained on the basis of a statute
or regulation other than that cited.’" (quoting Fed. R. Crim. P. 7(c)(3)
advisory committee’s note)). Here, Groce does not assert that she was
misled or prejudiced by the inclusion of the citation applicable to
brandishing of a firearm rather than to use and carry of a firearm.
Therefore, she is not entitled to acquittal based on the inclusion of
that citation.
CONCLUSION
For the reasons discussed, we affirm Groce’s conviction, but vacate
her sentence and remand the case for further proceedings consistent
with this opinion.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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