[PUBLISH]
`
`IN THE UNITED STATES COURT OF APPEALS
`
` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` No. 10-15965
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`JUNE 29, 2012
`JOHN LEY
`CLERK
`
` D.C. Docket No. 1:09-cr-00263-TWT-GGB-2
`
`UNITED STATES OF AMERICA,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Plaintiff - Appellee,
`
`versus
`
`RANDY VANA HAILE, JR.,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Defendant - Appellant.
`
` ________________________
`
` No. 11-10017
` ________________________
`
` D.C. Docket No. 1:09-cr-00263-TWT-GGB-1
`
`UNITED STATES OF AMERICA,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Plaintiff - Appellee,
`
`versus
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`
` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` No. 10-15965
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
`JUNE 29, 2012
`JOHN LEY
`CLERK
`
` D.C. Docket No. 1:09-cr-00263-TWT-GGB-2
`
`UNITED STATES OF AMERICA,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Plaintiff - Appellee,
`
`versus
`
`RANDY VANA HAILE, JR.,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Defendant - Appellant.
`
` ________________________
`
` No. 11-10017
` ________________________
`
` D.C. Docket No. 1:09-cr-00263-TWT-GGB-1
`
`UNITED STATES OF AMERICA,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Plaintiff - Appellee,
`
`versus
`
`
`
`MARK ANTHONY BECKFORD,
`
`llllllllllllllllllllllllllllllllllllllll
`
`Defendant - Appellant.
`
`________________________
`
` Appeals from the United States District Court
` for the Northern District of Georgia
` ________________________
`
`(June 29, 2012)
`
`Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.
`
`PER CURIAM:
`
`Randy Vana Haile and Mark Anthony Beckford were convicted of
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`conspiracy and attempt to possess with intent to distribute marijuana and cocaine
`
`and knowing possession of several firearms in conjunction with their drug-
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`trafficking offenses. The district court sentenced Beckford and Haile to 438
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`months and 468 months of imprisonment, respectively. Beckford now appeals his
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`conviction and sentence, and Haile appeals his conviction. After a thorough
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`review of the record and the parties’ briefs, and with the benefit of oral argument,
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`we affirm in part and reverse in part.
`
`I.
`
`Haile and Beckford were charged by superseding indictment with:
`
`
`
`conspiracy to possess at least 5 kilograms of cocaine and at least 1,000 kilograms
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`of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
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`(b)(1)(A)(vii), and 846 (Count 1); attempt to do the same, in violation of 21 U.S.C.
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`§§ 841(a)(1), (b)(1)(A)(ii) and (vii), and 846 (Counts 2 and 3); knowing
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`possession of 5 enumerated firearms, including a machine gun, in furtherance of a
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`drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A), (B)(i), and (B)(ii)
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`(Count 4); possession of a firearm with an obliterated serial number, in violation
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`of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (Count 6); and possession of an
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`unregistered machine gun, in violation of 26 U.S.C. §§ 5841, 5845(b), and
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`5861(d) (Count 7). Haile was also charged with possession of a firearm by a
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`convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a) (Count 5).
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`At trial, several Drug Enforcement Administration (DEA) agents testified
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`about the reverse-sting operation that led to the defendants’ arrest. The agents
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`testified that a confidential informant (CI) provided information that Beckford,
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`who lived in Atlanta, was seeking a marijuana supplier. At the DEA’s request, the
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`CI told Beckford about a man named Rodriguez, an undercover agent posing as a
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`marijuana supplier.
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`Thereafter, the CI and Rodriguez met with Beckford in San Antonio. 1
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` The DEA recorded this meeting, as well as the other encounters between Haile, Beckford, and
`he DEA’s undercover agents.
`
`1 t
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`3
`
`
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`Rodriguez proposed a price of $300 per pound of marijuana, to which Beckford
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`replied, “Yeah, yeah, yeah.” Beckford stated that he would take 1,000 pounds, “If
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`it’s good,” and that he would like the drugs to be delivered to the Jamaica Flava
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`restaurant in Atlanta.
`
`Before the meeting concluded, the CI asked Rodriguez, in front of
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`Beckford, “Did you tell him about the white stuff?” Rodriguez said to Beckford,
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`“I give you good price too.” Beckford responded, “I’ll call you,” and the two
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`exchanged telephone numbers. Later, on the phone, Beckford agreed to give
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`Rodriguez a $25,000 security deposit for the marijuana and to meet with one of
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`Rodriguez’s associates, undercover agent Arrugueta, in Atlanta. At some point
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`during the phone conversations, the two discussed guns. And the CI confirmed
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`that Beckford had easy access to guns.
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`When Beckford met with Arrugueta, Haile was also present. Arrugueta
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`asked Beckford, “Did [Rodriguez] talk to you about the tools?” Beckford replied,
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`“Yeah, yeah, yeah. He talked to me about it.” Arrugueta asked, “What kind do
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`you have?” Beckford said, “my people . . . got the AK,” which Arrugueta
`
`understood to mean any assault rifle, not just an AK-47. Arrugueta asked,
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`“machine gun?” Beckford said, “Yep.” When Arrugueta asked what Beckford’s
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`“people” wanted for the gun, Beckford said drugs, not money. Beckford said he
`
`4
`
`
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`had “like six [guns] so far” to exchange in the deal. Arrugueta, Haile, and
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`Beckford agreed to exchange two pounds of marijuana for each gun.
`
`After Haile and Beckford left the meeting with Arrugueta, they spoke with
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`Rodriguez, and the parties decided that Beckford and Haile would fly to San
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`Antonio the next day to meet Rodriguez and discuss the marijuana deal. At the
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`meeting, Rodriguez confirmed that he would deliver 500 pounds of marijuana, at a
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`price of $300 per pound, to the Jamaica Flava restaurant in Atlanta.
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`Rodriguez again mentioned that he distributed cocaine, and Haile asked
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`Rodriguez about the quality and quantity of cocaine Rodriguez distributed.
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`Rodriguez offered to give Haile and Beckford a kilogram of cocaine for $23,000,
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`and Haile replied, “Uh-hmm.”
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`Rodriguez then asked what kind of “nail gun,” which he and Beckford had
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`spoken about earlier, Beckford had. Beckford replied, “It’s a machine gun, AK.”
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`Then Rodriguez asked, “you want white?” Haile responded that Rodriguez “could
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`throw two or three” kilograms onto the marijuana load. Haile told Rodriguez, “if
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`it’s good, I’d get it, like couple days probably.” Rodriguez agreed. At the
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`conclusion of the meeting, Haile and Beckford gave Rodriguez the $25,000
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`deposit.
`
`A few days later, Rodriguez spoke with Beckford by phone. Rodriguez
`
`5
`
`
`
`said,“I got all [the] food you need for the store,” and, “I also bring . . . three sugar
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`bag for, for your friend.” Beckford replied, “Yeah, ‘cause I got somebody
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`waiting.” On the morning of the scheduled drug delivery, Rodriguez called
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`Beckford and asked if he had the “power tool.” Beckford repeatedly stated, “I’m
`
`working on it right now.”
`
`That same day, Rodriguez and other DEA agents staged a U-Haul trailer
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`containing hundreds of pounds of marijuana and several kilograms of cocaine at a
`
`hotel in Atlanta. Rodriguez met with Beckford and Haile in the hotel parking lot
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`and permitted Haile to inspect the drugs. Rodriguez then asked Haile and
`
`Beckford how much money they could pay at that time. Beckford stated that he
`
`and Haile had access to $70,000 and could probably come up with more.
`
`Rodriguez said, “and the tool?” Haile asked in response, “Oh, you want the tools
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`now?” Rodriguez said that he did, so the three continued to negotiate Haile and
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`Beckford’s payment of guns and money. Rodriguez asked, “you bring five gun?”
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`And Beckford replied, “Yeah.” Then, Beckford and Haile left to obtain the rest of
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`the payment.
`
`Agents stationed at Jamaica Flava then observed several men loading large,
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`heavy bags into the back of a truck registered to Beckford. Beckford and Haile
`
`drove the truck back to the hotel, but left the parking lot when they realized
`
`6
`
`
`
`Rodriguez was not present. They drove to a nearby restaurant where DEA agents
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`arrested them.
`
`Agents found a Glock .45 caliber pistol on Haile. In Beckford’s truck,
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`agents found: (1) $70,000 in a plastic bag in the back seat; (2) a loaded .40 caliber
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`handgun in a holster in the center console; (3) a bag containing loose cash,
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`Jamaica Flava business cards, and loose marijuana in the back seat; (4) two
`
`Norinco 7.62 caliber SKS rifles, one with an obliterated serial number, in the
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`vehicle’s flatbed; and (5) a 9-millimeter, an M-11 machine gun (not registered to
`
`either defendant), a bulletproof vest, and ammunition for a .40 caliber, a 7.62
`
`caliber, and a 9-millimeter, all inside a gym bag in the flatbed.
`
`At the conclusion of the trial, counsel for the defendants moved for a
`
`judgment of acquittal on all counts. Defense counsel specifically argued that
`
`Count 4, which charged possession of a machine gun, failed to properly allege an
`
`offense because the indictment charged the defendants with knowing possession
`
`of firearms “during and in relation to and in furtherance of a drug trafficking
`
`crime.” (emphasis added). The district court denied the motion for judgment of
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`acquittal, finding that the “during and in relation to” language was mere
`
`surplusage. The court struck that language from the indictment and later excluded
`
`“during and in relation to” from its jury instructions on Count 4.
`
`7
`
`
`
`Also in the motion for judgment of acquittal, defense counsel argued that
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`the government’s evidence was insufficient as a matter of law to establish that the
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`defendants knew they possessed a machine gun. The court denied the motion, but
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`included on the verdict forms a question asking the jury about the defendants’
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`knowledge of the gun’s characteristics.
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`At the charge conference, Beckford’s counsel requested that the court
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`charge the jury on “outrageous government conduct” based on the defense’s
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`theory that the government ratcheted up the defendants’ charges through the sting
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`operation. The court denied the request. Beckford’s counsel also asked the
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`district court to instruct the jury on the definition of “machine gun,” and the court
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`agreed to do so. The court, however, did not instruct the jury on the definition,
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`even though it had agreed the instruction was proper. The jury found both
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`defendants guilty on all counts.
`
`At sentencing, Beckford requested a reduction based on alleged sentencing
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`factor manipulation, arguing that the government improperly increased the amount
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`of drugs involved in the transaction. The district court denied his request. The
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`court emphasized that Beckford and Haile were “the ones that had this machine
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`gun,” the possession of which required a 30-year mandatory minimum sentence on
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`Count 4.
`
`8
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`
`
`The court ultimately sentenced Beckford to 438 months’ imprisonment,
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`which was at the low end of his guidelines range. This included a mandatory 360-
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`month sentence on Count 4; a 78-month sentence on each of Counts 1, 2, 3, and 7,
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`to be served concurrently with one another; and a 60-month sentence on Count 6,
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`possession of a firearm with an obliterated serial number, to be served
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`concurrently with the other counts. The court sentenced Haile to 468 months’
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`imprisonment. This is the defendants’ appeal.
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`II.
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`Haile and Beckford both contend that: (1) Count 4, knowing possession of
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`firearms in furtherance of a drug-trafficking crime, was not properly before the
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`jury; and (2) even if Count 4 was properly submitted to the jury, the jury
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`instructions for that charge were erroneous. Beckford also contests: (1) the
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`sufficiency of the evidence in his case; (2) the district court’s failure to give
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`certain jury instructions; and (3) his 438-month sentence. We address each of
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`these claims in turn.
`
`A.
`
`Haile and Beckford contend that the § 924(c) charge in Count 4 of the
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`indictment was defective because it conflated the two triggers of that statute, and
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`therefore they argue their convictions on that count should be overturned. We
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`9
`
`
`
`review the sufficiency of an indictment de novo. United States v. Poirier, 321
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`F.3d 1024, 1028 (11th Cir. 2003).
`
`Section 924(c) states, “any person who, during and in relation to any crime
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`of violence or drug trafficking crime . . . uses or carries a firearm, or who, in
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`furtherance of any such crime, possesses a firearm, shall, in addition to the
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`punishment provided for such crime of violence or drug trafficking crime,” be
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`subject to enhanced penalties enumerated in the statute. 18 U.S.C. § 924(c)(1)(A).
`
`Thus, the enhanced penalties are triggered in one of two ways: under the “during
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`and in relation to . . . uses or carries” prong, or under the “in furtherance of . . .
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`possesses” prong. Id. Count 4 of the superseding indictment charged that the
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`defendants “knowingly possessed a firearm(s) . . . during and in relation to and in
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`furtherance of a drug trafficking crime” in violation of sections “924(c)(1)(A),
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`924(c)(1)(B)(i), and 924(c)(1)(B)(ii).” (emphasis added).
`
`Haile and Beckford argue that Count 4 in the indictment conflated the two
`
`triggers under § 924(c), resulting in a violation of their Sixth Amendment right “to
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`be informed of the nature and cause of the accusation” against them. U.S. Const.
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`amend. VI. They also argue that the indictment violated their Fifth Amendment
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`right to “only be convicted for a crime charged in the indictment.” United States
`
`v. Ward, 486 F.3d 1212, 1226 (11th Cir. 2007) (internal quotation marks omitted)
`
`10
`
`
`
`(citing U.S. Const. amend. V).
`
`“Generally, an indictment is sufficient if it: 1) sets forth the elements of the
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`offense in a manner which fairly informs the defendant of the charge against
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`which he must defend and 2) enables him to enter a plea which will bar future
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`prosecution for the same offense.” Belt v. United States, 868 F.2d 1208, 1211
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`(11th Cir. 1989). Minor deficiencies in an indictment do not automatically render
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`it constitutionally deficient, Poirier, 321 F.3d at 1029, and, “[i]f an indictment
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`specifically refers to the statute on which the charge was based, the reference to
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`the statutory language adequately informs the defendant of the charge.” United
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`States v. Fern, 155 F.3d 1318, 1325 (11th Cir. 1998).
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`Here, Count 4 in the indictment specifically referred to § 924(c)(1)(A),
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`which at least put Haile and Beckford on notice of the two triggers for enhanced
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`punishment. Fern, 155 F.3d at 1324-25; Belt, 868 F.2d at 1211. Further, to clear
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`any confusion for the defendants and the jury, the district court struck the “during
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`and in relation to” language from the indictment.
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`Haile and Beckford contend that striking the improper language was error
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`because removal of the language lessened the government’s burden of proof. We
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`disagree. It was never the government’s burden under § 924(c) to prove that the
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`defendants’ possession of the gun was “during and in relation to” the crime as well
`
`11
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`
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`as “in furtherance of” it; rather, the government bore the burden only to prove
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`facts satisfying one of the triggers. Thus, the district court’s deletion of “during
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`and in relation to” brought the indictment in line with the specific language of the
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`independent second trigger of § 924(c)(1)(A) and the government’s burden of
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`proof under that clause.
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`Haile and Beckford also argue that removal of the offending language was
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`an impermissible amendment to the indictment because it broadened the charges
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`upon which they could be convicted. But “[i]t is not an amendment to a charge to
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`‘drop from an indictment those allegations that are unnecessary to an offense that
`
`is clearly contained within [the indictment].’” Ward, 486 F.3d at 1227 (alteration
`
`in original) (quoting United States v. Miller, 471 U.S. 130, 144 (1985)). Because
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`§ 924(c)(1)(A) was cited in the charge, and because the dropped “during and in
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`relation to” language is unnecessary for a conviction under the “in furtherance of”
`
`trigger in that statute, there was no impermissible amendment.
`
`B.
`
`Haile and Beckford assert, in the alternative, that the district court
`
`committed reversible error by failing to instruct the jury that, to establish a
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`conviction for machine-gun-possession, the jury must find that (1) the defendant
`
`possessed a machine gun and (2) knew the firearm was a machine gun when he
`
`12
`
`
`
`possessed it. We review the court’s instructions on a charge de novo. United
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`States v. Richardson, 233 F.3d 1285, 1292 (11th Cir. 2000).
`
`Section 924(c)(1)(B)(ii) provides for a 30-year minimum sentence if the gun
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`a defendant possessed was a machine gun. The district court accordingly
`
`instructed the jury that Count 4 required the jury to find that each defendant
`
`“knowingly possessed” each firearm, including the M-11 machine gun. Haile and
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`Beckford contend that this instruction is insufficient because the jury was required
`
`to find, beyond a reasonable doubt, that the defendants knew the gun they
`
`possessed had the characteristics of a machine gun. Specifically, they argue that
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`the Supreme Court’s decision in United States v. O’Brien, 130 S. Ct. 2169, 2180
`
`(2010), makes such knowledge an element of the offense that the government must
`
`prove.
`
`The defendants, however, misunderstand O’Brien. In that case, the
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`Supreme Court held that the fact that a firearm was a machine gun was an element
`
`of the § 924(c)(1)(B)(ii) offense rather than merely a sentencing enhancement.
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`O’Brien, 130 S. Ct. at 2180. In other words, the government must prove beyond a
`
`reasonable doubt that the firearm in question was actually a machine gun. Id. at
`
`2175-80. O’Brien did not hold that a defendant’s knowledge that a firearm is a
`
`machine gun must also be so proved. And nothing in the text of § 924(c)(1)(B)(ii)
`
`13
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`
`
`makes knowledge of the firearm’s characteristics an element of the offense.
`
`Indeed, this court has held that § 924(c)(1)(B)(ii) “does not require proof of
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`particularized knowledge of the weapon characteristics.” United States v.
`
`Ciszkowski, 492 F.3d 1264, 1269 (11th Cir. 2007) (internal quotation marks
`
`omitted). Although Ciszkowski construed § 924(c)(1)(B)(ii) as a sentencing
`
`enhancement — a construction that the Supreme Court in O’Brien rejected —
`
`O’Brien did not expressly overrule, nor did it even mention, Ciszkowski. Thus,
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`under our prior-precedent rule, Ciszkowski’s holding that “proof of particularized
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`knowledge of the weapon characteristics” is not required remains controlling. See
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`United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008) (“Under the
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`prior precedent rule, we are bound to follow a prior binding precedent ‘unless and
`
`until it is overruled by this court en banc or by the Supreme Court.’” (quoting
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`United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003)). The government
`
`therefore was not required to prove, and the jury did not have to find beyond a
`
`reasonable doubt, that Beckford and Haile knew the firearm in question was a
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`machine gun. And, accordingly, the district court’s instructions to the jury were
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`not erroneous.
`
`C.
`
`Beckford, but not Haile, contests the sufficiency of the evidence against
`
`14
`
`
`
`him. Beckford concedes that the evidence was sufficient to convict him on the
`
`marijuana charges. But he argues that: (1) he was entrapped into committing the
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`cocaine and firearm offenses; (2) the firearms were not possessed in furtherance of
`
`a drug-trafficking crime; and (3) he did not knowingly possess a firearm with an
`
`obliterated serial number. We review these issues de novo, viewing the evidence
`
`2
`
`in the light most favorable to the government and resolving all reasonable
`
`inferences and credibility evaluations in favor of the jury’s verdict. United States
`
`v. To, 144 F.3d 737, 743 (11th Cir. 1998).
`
`1.
`
`Entrapment
`
`Beckford argued at trial that he was entrapped into committing the cocaine
`
`and firearm charges in the indictment. An entrapment defense consists of two
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`elements: “(1) government inducement of the crime, and (2) lack of predisposition
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`on the part of the defendant.” United States v. Brown, 43 F.3d 618, 623 (11th Cir.
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`1995). Where, as here, the defendant argues and the jury rejects an entrapment
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`defense, “our review is limited to deciding whether the evidence was sufficient for
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`a reasonable jury to conclude that the defendant was predisposed to take part in
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`the illicit transaction.” Id. at 622.
`
` In addition, Beckford contends the evidence failed to show that he knew the firearm he
`ossessed had the characteristics of a machine gun. For the reasons discussed above, his
`argument fails.
`
`2 p
`
`15
`
`
`
`Here, the jury could reasonably conclude that Beckford was predisposed to
`
`engage in the charged conduct. Beckford actively sought a drug supplier, and,
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`once he established rapport with Rodriguez, he and Haile discussed with
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`Rodriguez and Arrugueta the possibility of a cocaine purchase and an exchange of
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`guns for drugs. Although Rodriguez and Arrugueta initiated the conversations
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`about cocaine and firearms, Beckford willingly discussed the topics and
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`voluntarily agreed to purchase cocaine and to supply guns. The morning of his
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`arrest, Beckford told Rodriguez he had “like six [guns] so far,” from which a
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`reasonable jury could infer that Beckford was predisposed to possess guns. And
`
`he told Arrugueta that he wanted drugs, not money, in exchange for the guns,
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`which shows that he actively proposed to make guns part of the transaction. This
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`evidence, in the aggregate, was sufficient for the jury to reject Beckford’s
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`entrapment defense.
`
`2.
`
`Firearm possession “in furtherance of” a drug-trafficking crime
`
`Beckford next argues that the firearms attributed to him in Count 4 were not
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`possessed “in furtherance of” the drug-trafficking crimes because, when police
`
`found them, they were stashed in bags in the truck or, in one instance, licensed and
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`carried in the center console. According to Beckford, this indicates that the guns
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`were not part of the drug sale.
`
`16
`
`
`
`“To establish that a firearm was possessed ‘in furtherance of’ a drug
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`trafficking crime, the government must show some nexus between the firearm and
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`the drug selling operation.” United States v. Molina, 443 F.3d 824, 829 (11th Cir.
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`2006) (internal quotation marks omitted). This nexus may be established by
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`“accessibility of the firearm,” “proximity to the drugs or drug profits, and the time
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`and circumstances under which the gun is found.” Id. at 829-30 (internal
`
`quotation marks omitted). The guns at issue here were in close proximity to the
`
`money Beckford intended to use to buy drugs and were brought to the drug
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`purchase. The gun for which Beckford had a license was loaded in the center
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`console, readily accessible from the front seat. The guns were found during a
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`sting operation, throughout the course of which Beckford had discussed his desire
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`to trade guns for drugs. And all of the guns were found in Beckford’s truck at the
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`moment he expected to be purchasing drugs in exchange for guns and money.
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`This evidence is sufficient to establish a nexus between all of the guns in the car
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`and the drug transaction.
`
`3.
`
`Possession of a firearm with an obliterated serial number
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`Lastly, Beckford argues that the evidence was insufficient for the jury to
`
`convict him of violating 18 U.S.C. § 922(k) because, although the serial number
`
`on one of the SKS rifles in his possession was indisputably obliterated, the
`
`17
`
`
`
`government failed to establish that he knew this. Section 922(k) provides:
`
`It shall be unlawful for any person knowingly to transport,
`ship, or receive, in interstate or foreign commerce, any firearm which
`has had the importer’s or manufacturer’s serial number removed,
`obliterated, or altered or to possess or receive any firearm which has
`had the importer’s or manufacturer’s serial number removed,
`obliterated, or altered and has, at any time, been shipped or
`transported in interstate or foreign commerce.
`
`Id. Whether a conviction under § 922(k) requires the government to prove beyond
`
`a reasonable doubt that the defendant knew at the time he possessed the gun that
`
`the serial number was obliterated is an issue of first impression in this circuit. But
`
`other circuits have consistently held that knowledge of the obliterated serial
`
`number is an element of the offense. See United States v. Sullivan, 455 F.3d 248,
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`261 (4th Cir. 2006); United States v. Haywood, 363 F.3d 200, 206 (3d Cir. 2004);
`
`United States v. Abernathy, 83 F.3d 17, 19 & n.1 (1st Cir. 1996); United States v.
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`Fennell, 53 F.3d 1296, 1300-01 (D.C. Cir. 1995); United States v. Haynes, 16 F.3d
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`29, 34 (2d Cir. 1994); United States v. Hooker, 997 F.2d 67, 72 (5th Cir. 1993);
`
`see also United States v. Rice, 520 F.3d 811, 818 (7th Cir. 2008) (finding, based
`
`on evidence that the defendant cleaned his guns regularly, that “the jury could
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`have found that he knew the serial number on his [gun] was obliterated”).
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`We join our sister circuits in holding that a defendant’s knowledge of the
`
`obliterated serial number is an element of the § 922(k) offense. Importantly,
`
`18
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`
`
`§ 924(a)(1)(B), which governs the penalties for violations of § 922(k), applies
`
`only to “knowing[]” violations. 18 U.S.C. § 924(a)(1)(B); see Haywood, 363 F.3d
`
`at 206 (discussing addition of “knowingly” to § 924(a)(1)(B) in 1986); Fennell, 53
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`F.3d at 1300-01 (same). Thus, for the enhanced penalties to apply under § 922(k),
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`Beckford must have possessed a gun with an obliterated serial number and known
`
`the number was obliterated.
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`The government did not admit any direct evidence of Beckford’s knowledge
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`of the obliteration. But generally, “[k]nowledge of defacement of the serial
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`number may be inferred where the defendant has possessed the gun under
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`conditions under which an ordinary man would have inspected [it] and discovered
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`the absence of a serial number.” Sullivan, 455 F.3d at 261 (citing United States v.
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`Moore, 54 F.3d 92, 101 (2d Cir. 1995)). The government contends that Beckford
`
`had ample time to gain knowledge of whether the gun had an obliterated serial
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`number.
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`We disagree. We are not persuaded that the evidence at trial was sufficient
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`even to show that Beckford possessed the gun for a period of time during which an
`
`ordinary man would have discovered that the serial number was obliterated.
`
`Although the government established that Beckford discussed guns in general
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`before the arrest and that agents found the gun in the flatbed of his truck (out of
`
`19
`
`
`
`his reach) after the arrest, the government put forth no evidence that Beckford
`
`actually possessed the gun for any significant length of time.
`
`The government essentially proved only that Beckford had constructive
`
`possession of the gun at the time of the arrest. But this constructive possession
`
`alone cannot be sufficient to establish Beckford’s knowledge of the obliterated
`
`serial number because, if it was sufficient, the standard would eviscerate the
`
`knowledge element of § 922(k) altogether. Thus, because the government proved
`
`only constructive possession, without anything more, it failed to prove, beyond a
`
`reasonable doubt, that Beckford had knowledge of the obliterated serial number,
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`and Beckford’s conviction on Count 6 must be reversed.
`
`D.
`
`Beckford next contests the district court’s failure to instruct the jury on (1)
`
`the definition of a machine gun and (2) his defense of outrageous government
`
`conduct. We review the court’s failure to give a requested instruction for an abuse
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`of discretion. United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir. 2004).
`
`The district court’s decision not to give such an instruction is an abuse of
`
`discretion if: “(1) the requested instruction was a correct statement of the law, (2)
`
`its subject matter was not substantially covered by other instructions, and (3) . . .
`
`the failure to give [the instruction] seriously impaired the defendant’s ability to
`
`20
`
`
`
`defend himself.” Id.
`
`1.
`
`The definition of “machine gun”
`
`At the charge conference, Beckford’s counsel asked the court to define
`
`“machine gun” for the jury. The district court indicated that it would, but, in fact,
`
`never did. Beckford now argues that the district court erred in failing to give this
`
`instruction. As the government emphasizes, however, the parties agreed at trial
`
`that the gun in question was a machine gun. Both parties referred to the gun as
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`machine gun throughout the trial, including in closing arguments. We need not
`
`address this issue because Beckford’s concession at trial that the gun was a
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`machine gun constitutes invited error and precludes review of this issue. See
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`United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009) (noting that the
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`doctrine of invited error is implicated when a party induces or invites the district
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`court into making an error).
`
`2.
`
`The defense of outrageous government conduct
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`Beckford also argues that the district court erroneously declined to instruct
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`the jury on his theory that his criminal responsibility for the cocaine and firearm
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`charges was limited due to outrageous government conduct. The proposed jury
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`instruction read, in part, “[t]he defendant may be acquitted of any charges in the
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`indictment if the jury determines that his offense conduct relating to that charge
`
`21
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`
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`was the result of outrageous government conduct.” (emphasis added). The
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`instruction cited United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.
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`2007).
`
`In Ciszkowski, this court stated, “[o]utrageous government conduct occurs
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`when law enforcement obtains a conviction for conduct beyond the defendant’s
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`predisposition by employing methods that fail to comport with due process
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`guarantees.” Id. (emphasis added) (citing United States v. Sanchez, 138 F.3d
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`1410, 1413 (11th Cir. 1998)). A court may remedy outrageous government
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`conduct by dismissing an indictment or by reversing a conviction. Sanchez, 138
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`F.3d at 1413. But this court has never held that outrageous government conduct
`
`could constitute a defense for the jury to consider. Given the lack of binding
`
`precedent on whether a jury may consider outrageous government conduct as a
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`defense, we conclude that the district court did not abuse its discretion in declining
`
`to give Beckford’s proposed jury instruction. See Beckford v. Dep’t of Corr., 605
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`F.3d 951, 961 (11th Cir. 2010) (“The district court did not abuse its discretion
`
`when it instructed the jury consistent with our precedent.”).
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`E.
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`Lastly, Beckford appeals his sentence on the grounds that the 360-month
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`22
`
`
`
`mandatory minimum sentence for possession of a machine gun constitutes cruel
`
`and unusual punishment and his 438-month total sentence is substantively
`
`unreasonable. We address these in turn.
`
`1.
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`Cruel and unusual punishment
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`At sentencing, Beckford’s counsel objected to the length of Beckford’s
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`sentence, arguing that it was cruel, unusual, and disproportionate to Beckford’s
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`culpability. The district court overruled Beckford’s objections, and we now
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`review de novo whether Beckford’s sentence violates the Eighth Amendment’s
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`prohibition on cruel and unusual punishment. United States v. Sanchez, 586 F.3d
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`918, 932 (11th Cir. 2009).
`
`The Eighth Amendment provides: “Excessive bail shall not be required, nor
`
`excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.
`
`Const. amend. VIII. Beckford maintains that his mandatory 30-year sentence
`
`under § 924(c)(1)(B)(ii), for possession of a machine gun in furtherance of a drug-
`
`trafficking crime, is grossly disproportionate to his crime.
`
`In assessing an Eighth Amendment challenge, we must determine whether
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`the sentence imposed was grossly disproportionate to the offense committed and,
`
`if so, we “must then consider the sentences imposed on others convicted in the
`
`same jurisdiction and the sentences imposed for commission of the same crime in
`
`23
`
`
`
`other jurisdictions.” United States v. Raad, 406 F.3d 1322, 1324 (11th Cir. 2005)
`
`(internal quotation marks omitted). “[W]e accord substantial deference to
`
`Congress, as it possesses ‘broad authority to determine the types and limits of
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`punishments for crimes.’” Id. at 1323 (quoting Solem v. Helm, 463 U.S. 277, 290
`
`(1983)). “[A] sentence which is not otherwise cruel and unusual does not become
`
`so simply because it is mandatory.” Id. at 1324 (alteration and internal quotation
`
`marks omitted).
`
`Given the serious nature of possessing a machine gun in furtherance of
`
`drug-trafficking crimes, Beckford’s 30-year statutory mandatory minimum
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`sentence imposed under § 924(c)(1)(B)(ii) is not grossly disproportionate to the
`
`offense. See Harmelin v. Michigan, 501 U.S. 957, 961, 966 (1991) (upholding a
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`life-without-parole sentence when the defendant, a first-time offender, possessed
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`more than 650 grams of cocaine). Beckford attempted to possess and distribute a
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`large quantity of drugs — larger than that in Harmelin — and equipped himself
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`with tools for violence. Thus, his sentence was not grossly disproportionate to his
`
`offense, and it therefore does not violate the Eighth Amendment.
`
`2.
`
`Substantive reasonableness
`
`In the alternative, Beckford contends that his 438-month sentence is
`
`substantively unreasonable because the district court (1) denied his request for a
`
`24
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`
`
`sentencing r
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