UNITED STATES of America, Plaintiff-Appellee, v. Jose LOAIZA-DIAZ, Defendant-Appellant

Jose Loaiza-Diaz was arrested while driving a truck loaded with 123.5 pounds of marijuana from Mexico to Phoenix, Arizona. During a search of the truck, police discovered a loaded shotgun underneath the seat on the passenger side. Loaiza-Diaz was indicted for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. § 846 ; possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841 (a)(1); and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924 (e). A jury convicted him on all counts. Loaiza-Diaz appeals his conviction for carrying a firearm during his drug trafficking crime. He argues that the jury was improperly instructed and that there was insufficient evidence to convict. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I

Loaiza-Diaz contends that the jury was improperly instructed on the “carry” element of 18 U.S.C. § 924 (e). Loaiza-Diaz contends that the district court used “emboldenment” language that improperly defines the “carry” element. Whether a jury instruction misstates elements of a crime is a question of law and is reviewed de novo. United States…