IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40594
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HERBERT EDWARD JAMES,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:92-CR-163-1
November 6, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Herbert Edward James appeals from the sentence imposed by the
district court after we granted his 28 U.S.C. § 2255 petition,
vacated his sentence, and remanded for resentencing.1 James first
argues that his conviction and sentence are invalid because the
verdict returned by the jury was based on a redacted indictment
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
See United States v. James, No. 99-41476 (5th Cir. Jan. 29,
2001).
different from the first superseding indictment returned by the
grand jury. The redacted indictment used by the jury differed from
the first superseding indictment in that it omitted counts 2 and
5,2 which the government had dismissed, and renumbered the
remaining counts.
In 1993, James was convicted for various drug related offenses
and for being a felon in possession of a firearm. We previously
upheld James’s conviction on direct appeal in United States v.
Washington.3 Thereafter, we granted James a certificate of
appealability and granted relief under 28 U.S.C. § 2255, holding
that James had shown that his trial counsel rendered ineffective
assistance by failing to challenge the indictment because two
counts alleging that James had used or carried a firearm during and
in relation to a drug trafficking crime were tied to the same drug
conspiracy.4 On this basis, we vacated James’s conviction on one
of the counts and remanded for resentencing.5
The issue that James raises concerning a difference between
2
Count 2 alleged that on May 6, 1992, James possessed with
intent to distribute a mixture or substance which contained a
detectable amount of cocaine base. Count 5 alleged that a co-
defendant, Leonard Provost, possessed with intent to distribute
five grams or more of a mixture or substance containing cocaine
base on November 4, 1992.
3
44 F.3d 1271 (5th Cir. 1995).
4
James, No. 99-41476.
5
Id.
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the first superseding indictment and the redacted indictment is
outside the scope of this court’s mandate in the remand order, and
therefore was not properly before the district court at
resentencing.6 Furthermore, even were the issue properly before
the district court, that court did not err in overruling James’s
objection to his presentence report. First, although James urges
that the renumbering of the indictment produced a fatal variance
between the jury verdict and the superseding indictment returned by
the grand jury, he misapprehends the concept of a legal variance.
“To prevail on a material variance claim, a defendant must prove
(1) a variance between the indictment and the proof at trial, and
(2) that the variance affected the defendant’s substantial
rights.”7 Here, Appellant is not alleging a variance in the legal
sense, that is, he is not asserting a variance between the charges
in the indictment and the evidence proffered by the government at
trial. Rather, James is utilizing the term “variance” in its more
literal sense: He claims that the verdict varied from the first
superseding indictment because, for example, the jury’s guilty
verdict as to count 2 of the redacted indictment actually
translated to the jury having found James guilty as to count 3 of
the first superseding indictment. Thus, James’s objection is more
accurately characterized as alleging an unlawful amendment to the
6
United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir.
1998).
7
United States v. Herrera, 289 F.3d 311, 318 (5th Cir. 2002).
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indictment, rather than a variance.
James’s argument that the renumbering constituted an
impermissible amendment to the indictment is unavailing. All due
process requires is “that an indictment afford a defendant notice
of the charges so that the defendant can prepare an adequate
defense.”8 The defendant cannot show that the redacted indictment
failed to afford him notice of the charges against which he had to
defend, because the only changes wrought by the redaction were a
deletion of two dismissed counts and a concomitant renumbering of
the charges. Thus, no substantive amendment to the indictment was
made, and James’s constitutional rights were not violated.9
James also argues that his sentence based on his drug
8
United States v. Alvarez-Moreno, 874 F.3d 1402 (5th Cir.
1989).
9
Id. (“‘[I]f a defendant has actual notice of the charges,
due process may be satisfied despite an inadequate indictment.’”);
cf. United States v. Zvi, 168 F.3d 49, 60 (2d Cir. 1999) (finding
that redaction of indictment did not constitute a constructive
amendment of the indictment); United States v. Adkinson, 135 F.3d
1363, 1376-77 (11th Cir. 1998) (“A redaction of an indictment is
permissible so long as the elements of the offense charged are
fully and clearly set out in what remains.... An indictment may
not, however, be so severely redacted that any of the elements of
the offense are expunged.”); United States v. Difronzo, 26 F.3d 133
(9th Cir. 1994) (Table) (“DiFronzo contends that the district court
erred when it redacted Count 1.... [W]e reject[] the argument that
a redacted indictment is an impermissible amendment.”).
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convictions10 violates Apprendi v. New Jersey,11 because the district
court did not instruct the jury to find a drug quantity as an
element of the offenses. This issue, too, is beyond the scope of
our remand order.12 Moreover, James admits that the procedural
posture of this case is in the nature of collateral review, and we
have held that Apprendi is not retroactively available to cases on
collateral review in § 2255 proceedings.13
AFFIRMED.
10
These constitute counts 1 though 6 of the redacted
indictment and counts 1, 3, 4, 6, 7, and 8 of the first superseding
indictment.
11
530 U.S. 466 (2000).
12
Marmolejo, 139 F.3d at 531.
13
United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002).
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