JAMES E. GRAVES, Circuit Judge:
Brandon Deshawn Campbell was convicted by a jury on one count of possession with intent to distribute marijuana, one count of possession with intent to distribute ecstasy, and two separate counts of possession of a firearm in furtherance of each of those drug convictions. Campbell was sentenced to a mandatory minimum of five years for his first firearm conviction, a mandatory minimum of twenty-five years for his second firearm conviction, and a fifteen-day concurrent sentence for his drug convictions. On appeal, Campbell challenges his second firearm conviction, which resulted in the imposition of a twenty-five year mandatory minimum sentence. For the reasons stated herein, we affirm.
In December 2011, Brandon Campbell was engaged in a drug trafficking enterprise along with his co-defendant Tyrone Allen.
Detective Martin obtained a search warrant for the drug house that the Narcotics Division executed on December 12, 2011, with the assistance of the Dallas Special Weapons and Tactics ("SWAT") Unit. During the search, the detectives arrested Campbell and Allen and collected numerous items, including cash, drugs, and firearms. The detectives found marijuana and ecstasy in the house. The detectives also found five firearms inside the living room: three handguns, one sawed-off shotgun, and one assault rifle. One handgun was found on the arm of a couch, another handgun was found under the couch's cushion, and the last handgun was found on the floor near the couch. One of the handguns found was the same handgun with a laser pointer that Detective Martin had observed Campbell with days earlier. The sawed-off shotgun and assault rifle were located underneath the couch. In a videotaped interview with a police detective, Campbell stated that his fingerprints would be on two of the handguns, including the one with the laser pointer. However, in that interview, Campbell further asserted that he mainly dealt with the handgun with the laser pointer.
Campbell was indicted under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 841(b)(1)(C) for knowingly possessing marijuana and ecstasy with the intent to distribute. The indictment charged Campbell for these drug offenses under both a theory of Campbell as the principal and a theory of accomplice liability pursuant to 18 U.S.C. § 2. The indictment also charged Campbell with two separate counts of the possession of a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1)(A)(i) and (c)(1)(B)(i). The firearm counts corresponded to each of the separate drug counts. Both firearm counts listed each of the five firearms found in the drug house as possible weapons upon which a conviction under those counts could be found. Campbell never raised a claim, before or during trial, that the indictment was defective.
A jury convicted Campbell on the aforementioned charges, including two counts of the possession of a firearm in furtherance of a drug trafficking crime corresponding to his separate convictions for the possession of marijuana and the possession of ecstasy. Although the superseding indictment did not specifically charge Campbell under 18 U.S.C. § 924(c)(1)(C)(i), which mandates a twenty-five year mandatory minimum for a second or subsequent firearm conviction under § 924(c), in the presentencing report ("PSR"), the United States Probation Office recommended the twenty-five year mandatory minimum for Campbell's second firearm conviction in addition to the five-year mandatory minimum under § 924(c)(1)(A)(i) for the first firearm count. Consequently, despite Campbell having no criminal history, the PSR recommended a minimum sentence of thirty years for the firearm counts alone.
Campbell objected to the PSR contending that the imposition of the twenty-five year mandatory minimum for his second firearm conviction under § 924(c)(1)(C)(i) did not apply where the evidence failed to establish more than a single use of one firearm in conjunction with multiple predicate drug offenses. In other words, Campbell argued that his second firearm conviction was invalid because the jury verdict did not establish that Campbell possessed more than one gun in connection to his two predicate drug offenses.
Campbell now appeals the district court's determination.
The parties dispute the standard of review that should be applied to Campbell's appeal. Although Campbell raises several arguments including charging error by the government, inadequate jury instructions, an unsupported jury verdict, and an unfairly enhanced punishment, we conclude from our review of the record that the essence of Campbell's appeal lies in his contentions that the jury was improperly instructed and that, as a result, his second firearm conviction was not supported by the jury verdict. In so construing Campbell's challenge, we conclude that Campbell's arguments on appeal were not properly preserved below as they were first raised at sentencing, over three months after his trial. See United States v. Harris, 740 F.3d 956, 965-66 (5th Cir. 2014); United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir.1992) (en banc) (recognizing that to preserve a claim of insufficiency of the evidence a defendant must move for judgment of acquittal when the government rests or at the close of all the evidence); see also United States v. Allison, 616 F.2d 779, 784 (5th Cir.1980) (per curiam) (explaining that under Federal Rule of Criminal Procedure 29(c), a claim of insufficiency of the evidence can also be preserved by a timely motion filed after a guilty verdict even in the absence of a motion at the close of the government's case or at the close of all the evidence).
Therefore, we review for plain error. United States v. Compian-Torres, 712 F.3d 203, 206 (5th Cir.2013). "To show plain error, a defendant must show that a forfeited error is clear or obvious, and that it affects his substantial rights. If such a showing is made, the Court has
Campbell contends in this appeal that because the jury verdict did not establish that different firearms were possessed or used in connection to each of his two drug trafficking predicate offenses, his second conviction under § 924(c)(1) cannot stand. Even if the question of whether Campbell possessed two distinct firearms should have been presented to the jury, we do not conclude that the district court clearly or obviously erred in its instruction.
Section 924(c)(1) imposes a mandatory minimum of twenty-five years for a second or subsequent conviction of possession of a firearm in furtherance of a drug trafficking crime. Id. In United States v. Phipps, 319 F.3d 177 (5th Cir.2003), this court held that under the particular facts of that case,
Campbell argues that in order for the second firearm conviction to be lawful, the jury needed to find that he possessed two or more guns. However, the jury was not so specifically instructed, and Campbell did not object in this regard to the jury instructions. For the § 924(c)(1) counts at issue, the district court's jury instructions did not require that any particular firearm be possessed in furtherance of a particular predicate drug offense nor did it require that a distinct firearm be possessed for the differing counts. Moreover, the instructions explained that proof of possession requires more than mere presence of a firearm at the scene. As such, on these facts, the jury instructions left open the
We conclude that the jury should have been required to decide the question of whether Campbell possessed a second, separate firearm. The logic underlying this court's decision in Phipps applies to the facts of this appeal. Utilizing principles of statutory interpretation, this court in Phipps decided that the unit of prosecution under § 924(c)(1) is the possession (or use, or carrying) of a firearm in furtherance of a predicate offense. 319 F.3d at 184. Given this unit of prosecution, § 924(c)(1) does not authorize multiple convictions for a single possession of a single firearm. Id. at 186. The statute only allows for as many firearm counts as there are possessions of the firearm. Id. If the jury only found that Campbell possessed one firearm (i.e. the handgun with the laser pointer) in connection to his marijuana and ecstasy trafficking offenses, that possession would have constituted a singular unit of prosecution under § 924(c)(1). For those reasons, on the facts of this case — namely, the simultaneous presence of multiple guns and some evidence that only one gun was actually possessed by the defendant — the jury should have been instructed that in order to find a second § 924(c)(1) conviction, the defendant must have been found to possess a firearm separate and distinct from the firearm possessed in the first § 924(c)(1) count.
Even though the question of whether a separate firearm was possessed should have been submitted to the jury, we do not conclude that the error was clear or obvious. Although we have concluded that the Phipps logic extends to Campbell's case, the Phipps court explicitly limited its holding to the facts of that particular appeal. 319 F.3d at 188 ("Finally, we stress that our holding is limited by the unusual fact that defendants gave the firearm to Medina immediately after using it."); id. at 189 ("In light of this extraordinary fact, § 924(c)(1) does not unambiguously authorize multiple convictions for a single use of a single firearm based on multiple predicate offenses."). Therefore, it was not clear or obvious that Phipps applied to the facts of Campbell's case.
For that same reason, the district court did not plainly err in not granting a judgment of acquittal for the second firearm count. Indeed, even under our de novo review, Campbell's sufficiency challenge would fail. Under our de novo standard, we view "the evidence in the light most favorable to the government [and] determine whether any rational jury could conclude from the evidence presented at trial that the government had proven all of the elements of the offense beyond a reasonable doubt." United States v. Carbajal, 290 F.3d 277, 289 (5th Cir.2002). While we have determined that, under these facts, the two separate § 924(c)(1) convictions required a finding that two separate firearms were possessed, we also conclude that a rational jury could have found that the government met its burden beyond a reasonable doubt. There were five firearms present when the search warrant was executed and a reasonable jury could have concluded that Campbell possessed at least two of those guns. In fact, Campbell stated that his fingerprints would be found on two of the weapons. Thus, there was sufficient evidence to support Campbell's second firearm conviction.
Because the district court did not plainly err in instructing the jury and because there was sufficient evidence to support