United States v. Roger Crumblin, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-4673

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ROGER RAY CRUMBLIN, JR., a/k/a Rajah Maurice Aiken, a/k/a
Rodger Ray Crumblin, a/k/a Roger Ray Crumblin,

Defendant – Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:09-cr-00039-DCN-1)

Submitted: July 14, 2011 Decided: July 28, 2011

Before KING, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. William N. Nettles, United States
Attorney, Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Roger Ray Crumblin, Jr., was convicted, following a

jury trial, of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1) (2006) (Count One),

possession with intent to distribute cocaine and cocaine base,

in violation of 21 U.S.C. § 841(a)(1) (2006) (Count Two), and

possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006) (Count

Three). Crumblin was sentenced as a career offender, pursuant

to U.S. Sentencing Guidelines Manual (“USSG”) § 4B1.1(c)(3)

(2009), and he received a sentence of 360 months’ imprisonment.

On appeal, Crumblin raises four issues: (1) that the

district court constructively amended the indictment because it

charged the jury in the disjunctive when the indictment was

drafted in the conjunctive; (2) that there was insufficient

evidence to establish that Crumblin possessed firearms or

ammunition; (3) that the district court erred in sentencing him

as a career offender and an armed career criminal; and (4) that

the district court improperly assessed a six-level enhancement,

pursuant to USSG § 3A1.2(c), for creating a substantial risk of

serious bodily harm to a law enforcement officer. For the

reasons that follow, we affirm the judgment of the district

court.

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 I.

Crumblin contends that the district court

constructively amended the indictment when it instructed the

jury on Counts One and Two in the disjunctive where the

indictment was drafted in the conjunctive. He asserts that the

district court impermissibly broadened the possible bases for

conviction.

A criminal defendant may only be tried on charges

alleged in an indictment, and “only the grand jury may broaden

or alter the charges in the indictment.” United States v.

Randall, 171 F.3d 195, 203 (4th Cir. 1999). “A constructive

amendment to an indictment occurs when . . . the court (usually

through its instructions to the jury) . . . broadens the

possible bases for conviction beyond those presented by the

grand jury,” which results in a “fatal variance[] because ‘the

indictment is altered to change the elements of the offense

charged, such that the defendant is actually convicted of a

crime other than that charged in the indictment.’” United

States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007) (quoting

Randall, 171 F.3d at 203. Constructive amendments are “error

per se and, given the Fifth Amendment right to be indicted by a

grand jury, ‘must be corrected on appeal even when not preserved

by objection.’” Id. (quoting United States v. Floresca, 38 F.3d

706, 714 (4th Cir. 1994) (en banc)).

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 However, not every variance between an indictment and

jury instructions rises to the level of a constructive

amendment. Indeed, “[i]t is well-established that when the

Government charges in the conjunctive, [but] the statute [at

issue] is worded in the disjunctive, the district court can

instruct the jury in the disjunctive” without constructively

amending the indictment. United States v. Perry, 560 F.3d 246,

256 (4th Cir. 2009).

Here, although Count One of the indictment charged

Crumblin with possession of “firearms and ammunition, that is, a

HiPoint 9mm pistol, a Taurus .357 revolver, .38 caliber

ammunition, .357 caliber ammunition, and 9mm ammunition,” and

Count Two charged with possession with intent to distribute

cocaine and cocaine base, the relevant statutes are phrased

disjunctively, and the district court’s jury instructions

tracked the language of the statute itself. The court’s

instructions were thus correct as instructing otherwise would

“improperly add elements to the crime that are not contained in

the statute itself.” United States v. Montgomery, 262 F.3d 233,

242 (4th Cir. 2001).

II.

Next, Crumblin argues that the evidence adduced at

trial was insufficient to support his conviction on Count One.

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He notes that fingerprints were not recovered from either of the

weapons. Crumblin asserts that, although Deputy Brennan

testified that he witnessed Crumblin discard something dark and

heavy, the poor lighting conditions undermined the reliability

of Brennan’s testimony.

We review de novo challenges to the sufficiency of the

evidence supporting a jury verdict. United States v. Kelly,

510 F.3d 433, 440 (4th Cir. 2007). A jury verdict should be

affirmed where, “viewing the evidence in the light most

favorable to the prosecution, [it] is supported by substantial

evidence.” United States v. King, 628 F.3d 693, 700

(4th Cir. 2011) (internal quotation marks omitted). Substantial

evidence is such “evidence that a reasonable finder of fact

could accept as adequate and sufficient to support a conclusion

of a defendant’s guilt beyond a reasonable doubt.” United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

To convict Crumblin of a § 922(g)(1) violation, the

Government was required to prove: (1) that the “defendant was a

convicted felon at the time of the offense,” (2) that he

“voluntarily and intentionally possessed a firearm,” and (3)

that “the firearm traveled in interstate commerce at some

point.” United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.

2001). Crumblin disputes only the second element.

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 Although Crumblin presented the testimony of a

photographer concerning general nighttime visibility conditions

in the area, where Crumblin was apprehended, the jury was free

to weigh the significance of this testimony in light of the

other evidence presented. Viewed in the light most favorable to

the Government, the record contains ample evidence permitting a

reasonable jury to conclude that Crumblin possessed the firearms

listed in the indictment. See King, 628 F.3d at 700

(“Throughout our review, we assume that the jury resolved any

conflicting evidence in the prosecution’s favor.” (internal

quotation marks omitted)).

III.

Next, Crumblin argues that the district court erred in

sentencing him as both a career offender and an armed career

criminal. In determining whether a defendant qualifies as

either an armed career criminal or a career offender, we review

legal conclusions de novo and factual findings for clear error.

See United States v. Hampton, 628 F.3d 654, 659 (4th Cir. 2010).

A defendant is a career offender under the Guidelines

if:

(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a
controlled substance offense; and (3) the defendant

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 has at least two prior felony convictions of either a
crime of violence or a controlled substance offense.

USSG § 4B1.1(a). A “prior felony conviction” means “a prior

adult federal or state conviction for an offense punishable by

death or imprisonment for a term exceeding one year, regardless

of whether such offense is specifically designated as a felony

and regardless of the actual sentence imposed.” USSG § 4B1.2,

cmt. n.1. A conviction sustained before age eighteen may

qualify as a predicate conviction “if it is classified as an

adult conviction under the laws of the jurisdiction in which the

defendant was convicted.” Id.

Crumblin asserts that his 1994 conviction may not

serve as a predicate for his career offender status * because he

was seventeen years old at the time of his arrest. Crumblin

relies on the Supreme Court’s decision in Roper v. Simmons,

543 U.S. 551 (2005), in which the Court held that the Eighth

Amendment prohibits imposition of the death penalty on offenders

under the age of eighteen. He argues that Roper, considered in

conjunction with South Carolina’s Youthful Offender Act (“YOA”),

*
Crumblin was arrested for two offenses on
January 14, 1994. The probation officer counted each as a
separate predicate offense for purposes of the armed career
criminal designation. Crumblin’s status as a career offender
does not require that these offenses be considered separately,
because even without counting them separately, Crumblin has the
requisite predicates. Consequently, we need not address this
contention.

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S.C. Code Ann. § 24-19-50 (2005), prohibits consideration of his

1994 conviction as a predicate offense.

Under South Carolina law, a youthful offender can

include offenders up to twenty-four years old. S.C. Code Ann.

§ 24-19-10(d) (2005 & Supp. 2010). A “child” is defined as an

individual under the age of seventeen, and the family court has

exclusive jurisdiction over juvenile offenses. S.C. Code Ann.

§ 63-19-20 (2010); see State v. Pittman, 647 S.E.2d 144, 160

(S.C. 2007) (construing provisions then codified at S.C. Code

Ann. § 20-7-400 (2003)). Therefore, Crumblin’s 1994 conviction

was not a juvenile conviction, despite his YOA sentence, and he

was sentenced to the maximum six-year term of imprisonment.

Accordingly, we conclude that the conviction may be counted

toward the career offender designation. See United States v.

Williams, 508 F.3d 724, 727-28 (4th Cir. 2007) (finding

conviction qualified as armed career criminal predicate where

sentence was imposed under the YOA); see also (J.A. 362

(sentence imposed)); S.C. Code Ann. § 24-19-50(3) (maximum

penalty).

Although Crumblin’s career offender status controls

his sentencing, he argues that his armed career criminal status

is relevant “because it increased the statutory minimum sentence

to 15 years imprisonment under § 924(e)(1).” However, the

statutory minimum was not an operative consideration in this

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case as his sentence was based on the Guidelines range.

Crumblin’s armed career criminal status is thus not relevant to

the sentence imposed.

IV.

Finally, Crumblin asserts that the district court

erred in applying a six-level enhancement to his offense level

for creating a substantial risk of serious bodily harm to a law

enforcement officer. In light of Crumblin’s status as a career

offender, this enhancement did not affect his sentence and we

need not address it. See Williams v. United States, 503 U.S.

193, 203 (1992) (concluding that a procedural error during

sentencing is harmless if “the error did not affect the district

court’s selection of the sentence imposed”).

Accordingly, we affirm the district court’s judgment.

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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