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Defendant-Appellant Jasaan Bastian appeals from a judgment of conviction following his guilty plea to unlawfully possessing a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). Bastian argues that the district court's acceptance of his guilty plea on the basis of a different weapon from the one specified in his indictment constituted a constructive amendment in violation of the Grand Jury Clause and that the court's failure to inform him of his rights under that provision rendered his guilty plea unknowing and involuntary. We conclude that Bastian's conviction under § 924(c)(1) on the basis of a different weapon did not constitute a plain error requiring reversal where Bastian failed to preserve his challenge below.
BRIAN E. SPEARS, Brian Spears LLC, Southport, Connecticut, for Defendant-Appellant Jasaan Bastian.
DOUGLAS B. BLOOM, Assistant United States Attorney (Justin Anderson, Michael Anderson Levy, Jeffrey E. Alberts, Assistant United States Attorneys, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York.
Before: KATZMANN, Chief Judge, SACK and LYNCH, Circuit Judges.
Gerard E. Lynch, Circuit Judge :
Defendant-Appellant Jasaan Bastian pled guilty in the United States District Court for the Southern District of New York (Kenneth M. Karas, Judge ) to conspiracy to distribute crack in violation of 21 U.S.C. § § 846, 841(a)(1), and 841(b)(1)(A), and to using and possessing a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). He now appeals from his conviction
for the firearms offense, contending that the district court's acceptance of his plea based on the possession of a different weapon from the one identified by the grand jury constructively amended his indictment and that the district court's failure to inform him of his rights under the Grand Jury Clause prevented him from entering a knowing and voluntary guilty plea. Reviewing Bastian's unpreserved claims for plain error under Fed. R. Crim. P. 52(b), we conclude that Bastian has not established that his conviction on the basis of a different weapon plainly constituted a constructive amendment of his indictment. We therefore AFFIRM the judgment of the district court.
Between 2009 and 2011, Jasaan Bastian participated in a conspiracy to distribute crack cocaine in New York's Sullivan County. Over the course of the drug operation, Bastian distributed between 2.8 and 8 kilograms of crack cocaine. During one sale of 2.3 grams of crack on or around November 23, 2010, Bastian also sold one of his customers a .32 caliber revolver with three rounds of ammunition.
On May 16, 2012, a grand jury indicted Bastian on three counts relating to the trafficking ring. Count One charged Bastian with conspiring, between 2009 and December 2011, to distribute crack cocaine in violation of 21 U.S.C. § § 846, 841(a)(1), and 841(b)(1)(A). Count Two charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § § 922(g) and 924(a)(2). Count Three charged him with using and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). Specifically, that count charged that " [b]etween in or about January 2011 and in or about April 2011," Bastian did " in relation to . . . the narcotics conspiracy alleged in Count One of this Indictment . . . possess a firearm, to wit, an Excel .20 gauge shotgun." 
On October 12, 2012, Bastian pled guilty to Counts One and Three of the indictment before the Honorable George A. Yanthis, United States Magistrate Judge. With regard to Count Three, the prosecutor advised the court, without objection from the defense, that Bastian and the government had " conferred and agreed" that Bastian would plead guilty on the basis of his use and possession of a different weapon from the one specified in the indictment: specifically, a .32 caliber revolver. Bastian subsequently allocuted to the fact that he had possessed and sold the .32 caliber revolver to one of his customers in furtherance of his drug trafficking operation. Based on the proceeding, Judge Yanthis recommended that the district court accept Bastian's plea agreement and, in January 2013, Judge Karas adjudged Bastian guilty on both counts.
At no point before Judge Yanthis or Judge Karas did Bastian challenge the substitution of the .32 caliber revolver as the basis of his conviction under § 924(c)(1), nor did he ...