United States v. Juan Rodriguez

MEMORANDUM

After a jury trial, Juan Rodriguez appeals from his conviction on three charges and from the imposition of a 248-month prison sentence. Exercising jurisdiction under 28 U.S.C. § 1291 , we affirm the convictions but vacate the sentence and remand.

1. Rodriguez challenges the jury instruction on the 18 U.S.C. § 924 (c) charge. We review for plain error. United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir.2006).

Section 924(c) creates a single offense that may be proven by two theories: carrying a firearm during and in relation to a predicate crime, or possessing a firearm in furtherance of such a crime. Id. at 1157-61 . The district court instructed the jury only on the “carrying during and in relation to” theory. Rodriguez argues that this was error because the government presented a “possession in furtherance” theory at trial. We disagree. While the government indicted Rodriguez on both theories, it had to prove only one in order to convict him. United States v. Booth, 309 F.3d 566, 572 (9th Cir.2002). The district court gave a sufficient instruction on the “carrying during and in relation to” theory, and the jury “is presumed to follow the instructions given to…