IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-41131 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARK ANTHONY EVANS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. G-00-CR-3-1 - - - - - - - - - - November 8, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Mark Anthony Evans appeals from his conviction and sentence

for: 1) possession with intent to distribute cocaine,

; 2) possession of a firearm during and in relation to a

drug trafficking crime,

(d)(1); and 3) being a

felon in possession of a firearm,

(g). Evans

argues that the evidence is insufficient to support the jury’s

verdict on the count charging him with a violation of

(g)(1), because that statute is unconstitutional when the

only interstate commerce nexus is the mere fact that the firearm

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-41131 -2-

at some point traveled interstate. “This court has repeatedly

emphasized that the constitutionality of § 922(g)(1) is not open

to question.” See United States v. De Leon,

(5th Cir.), cert. denied,

(1999). Recent decisions

by the Supreme Court do not alter this ruling.

Evans has not shown, and in fact fails to argue, that the

district court participated in any way in the plea discussions

between Evans and the Government, either before or after the

court’s rejection of his plea agreement. Without such a showing,

it was not error for the same district court to impose sentence.

See United States v. Adams,

(5th Cir. 1981).

As the Government concedes, Evans’ argument that the

paragraph of the indictment charging him with a violation of

(c) is legally insufficient because it charged that

he “possessed” a firearm during and relation to a drug

trafficking crime, and thus failed to state a crime under the

statute, is convincing. Under separate clauses of

(c)(1)(A), an individual who “uses or carries” a firearm

“during and in relation to” a drug-trafficking offense or one who

“possesses” a firearm “in furtherance of” such an offense

violates the law. This court has considered the meaning of the

“possession-in-furtherance” language added in 1998 and determined

that the phrase has a definition distinct from “using or

carrying” a firearm “during and in relation to” drug trafficking.

United States v. Ceballos-Torres,

(5th Cir. 2000),

cert. denied,

(2001). The court held that, under

the “possession-in-furtherance” clause it was necessary to No. 00-41131 -3-

present evidence “more specific to the particular defendant,

showing that his or her possession actually furthered the drug

trafficking offense.” Id. at 414.

In light of the Ceballos-Torres decision, the indictment

charging Evans with a violation of

(c) was

defective because it charged Evans with a crime that does not

exist under the statute, possession of a firearm during and in

relation to a drug trafficking crime. See United States v.

Fitzgerald,

(5th Cir. 1996). Evans’ conviction

on this court is therefore VACATED. Because a conviction under

(c) carries a mandatory 60-month sentence to run

consecutive to any other sentence, the case is REMANDED to the

district court for resentencing.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.