UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4521
RICHARD RAY HUGHES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4594
MANUEL CARRIZOZA,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of North Carolina, at Asheville.
Lacy H. Thornburg, District Judge.
(CR-02-45)
Submitted: February 19, 2004
Decided: March 16, 2004
Before LUTTIG, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Gregory A. Newman, BLANCHARD, BOWEN, NEWMAN &
HAYES, Hendersonville, North Carolina; Sue Genrich Berry,
2 UNITED STATES v. HUGHES
BOWEN, BERRY, POWERS AND SLAUGHTER, P.L.L.C., Wil-
mington, North Carolina, for Appellants. Robert J. Conrad, Jr., United
States Attorney, Thomas R. Ascik, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Richard Ray Hughes and Manuel Carrizoza were convicted in sep-
arate trials for their involvement in a conspiracy to distribute at least
fifty grams of methamphetamine, in violation of 21 U.S.C. § 846
(2000). Hughes was sentenced to 192 months incarceration, 5 years
of supervised release, and a $100 special assessment. Carrizoza was
sentenced to 360 months incarceration, 10 years of supervised release,
and a $100 special assessment. Both timely appealed, and their
appeals have been consolidated.
First, Hughes argues the evidence was insufficient to sustain his
conviction. This Court reviews a challenge to the sufficiency of the
evidence to determine whether, viewing the evidence in the light most
favorable to the Government, there is substantial evidence to support
the conviction. United States v. Glasser, 315 U.S. 60, 80 (1942). This
claim is meritless. Multiple witnesses testified regarding Hughes’
drug activity, and their credibility is not subject to appellate review.
See, e.g., United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.
1997).
Second, Hughes argues the district court erred by failing to grant
him a two point reduction in his offense level for being a minor par-
ticipant in the conspiracy. We review the district court’s denial of a
minor role adjustment for clear error. United States v. Daughtrey, 874
F.2d 213, 218 (4th Cir. 1989). This claim is meritless. Hughes has not
UNITED STATES v. HUGHES 3
established he had a minor role in the conspiracy. U.S. Sentencing
Guidelines Manual § 3B1.2(b) (2002).
Third, Carrizoza argues the district court erred, under Fed. R. Evid.
404(b), in admitting evidence from searches of his residences. We
review this claim for plain error because Carrizoza did not raise this
challenge in district court. Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). This claim is meritless. Federal
agents searched Carrizoza’s residences in the course of their investi-
gation of his involvement with the instant conspiracy. The searches
thus revealed evidence directly related to the conspiracy for which
Carrizoza was indicted, not evidence of "prior bad acts" under Fed.
R. Evid. 404(b).
Fourth, Carrizoza argues the district court’s jury instructions con-
stituted a constructive amendment of the indictment. In reviewing this
claim, we note that a "constructive amendment violates the Fifth
Amendment, is error per se, and must be corrected on appeal even
when the defendant did not preserve the issue by objection." United
States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). This claim is
meritless. The jury instructions did not broaden the indictment’s basis
for Carrizoza’s conviction. Id.
Fifth, Carrizoza argues the district court erred at sentencing in
determining the drug quantity for which he was liable. We review a
sentencing court’s drug quantity determinations for clear error. United
States v. D’anjou, 16 F.3d 604, 614 (4th Cir. 1994). This claim is
meritless. The district court’s findings were based on the Presentence
Investigation Report, and Carrizoza does not show these findings are
inaccurate or unreliable. United States v. Randall, 171 F.3d 195, 221
(4th Cir. 2000).
Accordingly, we affirm the convictions and sentences of Hughes
and Carrizoza. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED