UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4344
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER JAMES MILLS, a/k/a Christopher James Nichols,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, Chief
District Judge. (7:12-cr-00013-GEC-1)
Submitted: January 31, 2014 Decided: February 19, 2014
Before MOTZ and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant. Timothy J. Heaphy, United States
Attorney, R. Andrew Bassford, Assistant United States Attorney,
Roanoke, Virginia; Mythili Raman, Assistant United States
Attorney, Denis J. McInerney, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher James Mills appeals his conviction and
254-month sentence for conspiracy to distribute and possess with
intent to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012). On
appeal, Mills raises several arguments: that the district court
denied him a fair trial by denying his motion in limine and
permitting evidence concerning a home invasion; that the
district court abused its discretion in denying his motions for
a mistrial and a new trial; that the evidence presented by the
Government resulted in a constructive amendment to the
indictment; that his sentence is procedurally unreasonable; and
that the district court unconstitutionally increased his
statutory mandatory minimum sentence. Finding no reversible
error, we affirm.
Mills first contends that the district court erred in
denying his motion in limine and permitting the Government to
present evidence pertaining to a home invasion, in violation of
Fed. R. Evid. 403 and 404(b). Even if we were to assume that
the district court erroneously admitted the evidence, we
conclude that any such error was harmless. See United States v.
Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008) (providing standard
of review).
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Second, Mills contends that the district court erred
in denying his motions for a mistrial and for a new trial based
on the Government’s alleged prosecutorial misconduct. We review
claims of prosecutorial misconduct “to determine whether the
conduct so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” United States v.
Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (internal quotation
marks omitted). To prevail on a claim of prosecutorial
misconduct, “the defendant must show that the prosecutor’s
remarks or conduct were improper and . . . that such remarks or
conduct prejudicially affected his substantial rights so as to
deprive him of a fair trial.” Id. Upon review, we conclude
that the Government did not engage in any improper conduct.
Thus, the district court did not abuse its discretion in denying
Mills’ motions for a mistrial or for a new trial. See United
States v. Robinson, 647 F.3d 941, 948 (4th Cir. 2010) (providing
standard of review for denial of motion for new trial); United
States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (providing
standard of review for motion for mistrial).
Third, Mills contends that his conviction should be
overturned because the Government constructively amended the
indictment by introducing evidence of a home invasion and drug
activity involving drugs other than cocaine and dating back to
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the 1990s. “[A]fter an indictment has been returned[,] its
charges may not be broadened through amendment except by the
grand jury itself.” Stirone v. United States, 361 U.S. 212,
215-16 (1960). “When the government, through its presentation
of evidence . . . broadens the bases for conviction beyond those
charged in the indictment, a constructive amendment — sometimes
referred to as a fatal variance — occurs.” United States v.
Allmendinger, 706 F.3d 330, 339 (4th Cir.) (internal quotation
marks and citation omitted), cert. denied, 133 S. Ct. 2747
(2013); see United States v. Foster, 507 F.3d 233, 242 (4th Cir.
2007) (“When considering a constructive amendment claim, it is
the broadening of the bases for a defendant’s conviction that is
important - nothing more.”) (internal quotation marks and
brackets omitted). Constructive amendments are fatal “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.” Foster, 507
F.3d at 242 (internal quotation marks omitted).
On review, we conclude that the Government’s evidence
did not amount to a constructive amendment to the indictment.
See United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009)
(providing standard of review). The brief mention of a home
invasion did not “create[] a substantial likelihood that [Mills]
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was convicted of an uncharged offense.” United States v.
Johnson, 719 F.3d 660, 668 (8th Cir. 2013) (internal quotation
marks omitted). Further, we conclude that evidence of
transactions involving drugs other than powder cocaine did not
constructively amend the indictment, considering the continuous
nature of Mills’ drug transactions with his alleged
coconspirators. See United States v. Dowdell, 595 F.3d 50, 68
(1st Cir. 2010) (stating that because Ҥ 841(a)(1) prohibits
distribution of any controlled substance regardless of type,”
“drug identity had no bearing on the substance of the charge”).
Fourth, Mills contends that his sentence is
procedurally unreasonable because the district court sentenced
him to fourteen months more than the statutory mandatory minimum
sentence. In reviewing a sentence, this court must first ensure
that the district court did not commit any “significant
procedural error,” such as failing to properly calculate the
applicable Guidelines range, failing to consider the 18 U.S.C.
§ 3553(a) (2012) factors, or failing to adequately explain the
sentence. Gall v. United States, 552 U.S. 38, 51 (2007). The
district court is not required to “robotically tick through
§ 3553(a)’s every subsection.” United States v. Johnson, 445
F.3d 339, 345 (4th Cir. 2006). However, the district court
“must place on the record an ‘individualized assessment’ based
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on the particular facts of the case before it. This
individualized assessment need not be elaborate or lengthy, but
it must provide a rationale tailored to the particular case at
hand and adequate to permit ‘meaningful appellate review.’”
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(quoting Gall, 552 U.S. at 50) (internal citation and footnote
omitted)). On review, we conclude that the district court
committed no procedural error and, thus, did not abuse its
discretion in imposing the within-Guidelines sentence. See
United States v. Lynn, 592 F.3d 572, 576, 578 (4th Cir. 2010)
(providing standard of review).
Finally, Mills contends that the district court
violated the Fifth Amendment by increasing his statutory
mandatory minimum sentence from ten years to twenty years based
on his prior drug conviction, where that conviction was neither
charged in the indictment nor submitted to a jury. Mills
essentially challenges the viability of Almendarez-Torres v.
United States, 523 U.S. 224 (1998), in light of the Supreme
Court’s recent decision in Alleyne v. United States, 133 S. Ct.
2151 (2013). Mills’ challenge fails, however, because we remain
“bound by Almendarez-Torres unless and until the Supreme Court
says otherwise,” which it has not. United States v. Graham, 711
F.3d 445, 455 (4th Cir. 2013); see also Alleyne, 133 S. Ct. at
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2060 n.1 (2013); United States v. Cheek, 415 F.3d 349, 354 (4th
Cir. 2005).
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
this court and argument would not aid the decisional process.
AFFIRMED
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