UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4307
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONTE LAMAR WILLIAMS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. Glen M. Williams, Senior
District Judge. (1:06-cr-00042-gmw)
Submitted: April 9, 2008 Decided: May 2, 2008
Before NIEMEYER and SHEDD, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appellant.
John L. Brownlee, United States Attorney, Jennifer R. Bockhorst,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donte Lamar Williams appeals his convictions and 120-
month sentence for possession of a firearm during a drug
trafficking crime, in violation of 18 U.S.C.A. § 924(c) (West 2000
& Supp. 2007) (Count One), possession of a firearm while being a
user of a controlled substance, in violation of 18 U.S.C.
§ 922(g)(3) (2000) (Count Three), and possession with intent to
distribute five grams or more of cocaine base, in violation of 21
U.S.C.A. § 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2007) (Count
Five). Williams’ counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he asserts that there are
no meritorious issues for appeal, but asks this court to review
whether Williams was erroneously charged and convicted. Williams
was given an opportunity to file a pro se supplemental brief, but
has not done so. Upon review of this case, we asked the Government
to address whether the district court’s instructions to the jury
constituted a constructive amendment of Count One of the
indictment.1 Upon consideration of the Government’s brief and the
1
A constructive amendment of an indictment occurs when either
the Government or the court expands the “possible bases for
conviction beyond those presented by the grand jury.” United
States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994). While
Williams failed to raise any objection to the district court’s
instructions and does not address this matter on appeal,
constructive amendment of a federal indictment constitutes error
per se, and, under United States v. Olano, 507 U.S. 725 (1993),
must be corrected on appeal even when not preserved by objection.
See Floresca, 38 F.3d at 714.
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record in this case, we find no error and affirm Williams’
convictions and sentence.
Under Count One of the indictment, the Government was
required to prove Williams used or carried a firearm during and in
relation to a drug trafficking crime or possessed a firearm in
furtherance of a drug trafficking crime. See United States v.
Lipford, 203 F.3d 259, 265-66 (4th Cir. 2000). Proof of the
underlying crime is necessary to convict under § 924(c). United
States v. Hopkins, 310 F.3d 145, 153 (4th Cir. 2002). In this
case, the indictment identified the predicate drug trafficking
crime as “conspiring to distribute and possession with the intent
to distribute a substance containing cocaine base.” This language
bears some similarity to the conspiracy charge under Count Four of
the indictment, which charged Williams with conspiracy to
“distribute and possess with intent to distribute” five grams or
more of cocaine base, in violation of 21 U.S.C.A. §§ 841(b)(1)(B),
846 (West 1999 & Supp. 2007). However, at the close of the
Government’s evidence, the district court dismissed Count Four due
to insufficient evidence of a conspiracy. The district court
subsequently instructed the jury that to convict Williams of
violating § 924(c), the Government was required to prove that
Williams “possessed cocaine base with the intent to distribute,”
and that during and in relation to that crime, he used or carried
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a firearm. The district court further identified Count Five as a
drug trafficking crime for purposes of § 924(c).
If Count Four was the only offense specified as the
predicate drug trafficking crime for purposes of Count One, the
district court’s dismissal of that count and subsequent
identification of Count Five as the predicate crime would
constitute a fatal variance of the indictment. See United
States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991) (fatal
variance “change[s] the elements of the offense charged, such that
the defendant is actually convicted of a crime other than that
charged in the indictment.”).2 In the indictment, however, the use
of the term “possession” rather than “possess” indicates that Count
One charged two predicate crimes, both the conspiracy charge of
Count Four and the possession charge of Count Five. While the
phrasing employed in the indictment is not a model of clarity, it
was nonetheless sufficient to put Williams on notice that two
predicate offenses were being alleged in regard to the § 924(c)
charge. See United States v. Williams, 152 F.3d 294, 298 (4th Cir.
1998) (court liberally construes indictment if claim is raised for
2
The Government is under no obligation to specify the
predicate offense for purposes of a § 924(c) charge; however, when
it chooses to do so, “it [is] not allowed through the presentation
of its evidence or its argument, and the district court [is] not
allowed through its jury instructions, to broaden the bases of
conviction to include [a] different § 924(c) predicate
offense . . . .” United States v. Randall, 171 F.3d 195, 210 (4th
Cir. 1999).
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the first time on appeal). Therefore, because the § 924(c) charge
listed both Count Four and Count Five as predicate offenses, we
find that no fatal variance occurred.
In Williams’ Anders brief, counsel asks this court to
review whether Williams was erroneously charged or convicted, but
concedes that the indictment sufficiently appraised Williams of the
charges against him and that his conviction and sentence were
supported by the evidence. The record reveals that the indictment
alleged each material element of the offenses charged and fairly
informed Williams of the charges against him. See United States v.
Wicks, 187 F.3d 426, 427 (4th Cir. 1999). Furthermore, there was
sufficient evidence to uphold Williams’ convictions for possession
of a firearm during a drug trafficking crime, possession of a
firearm while being an unlawful user of controlled substances, and
possession with intent to distribute more than five grams of
cocaine. Finally, Williams raised no objections at sentencing and
received the minimum sentence required by statute. Therefore, we
conclude there was no error in regard to Williams’ convictions or
sentence.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm Williams’ convictions and sentence. This court
requires counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
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If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on the
client. 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
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