United States v. Billy Leasure

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0399n.06

No. 07-6125 FILED
Jun 03, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
BILLY FLOYD LEASURE, ) EASTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
)

Before: KENNEDY, GIBBONS and ROGERS, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Billy Floyd Leasure appeals his jury

conviction for aiding and abetting the distribution of crack cocaine and his 200-month sentence. The

United States District Court for the Eastern District of Tennessee sentenced Leasure based on the

career offender provision of the United States Sentencing Guidelines (“Guidelines”) and granted a

downward variance of 62 months. On appeal, Leasure challenges the admission of 404(b) evidence

and expert witness evidence against him, the district court’s use of an Allen charge, and the

procedural and substantive reasonableness of his sentence. For the following reasons, we affirm

Leasure’s conviction and sentence.
 I.

On January 6, 2005, officers of the Oak Ridge, Tennessee, Police Department conducted an

operation in which they instructed a confidential informant, Gary Goodman, to buy crack cocaine.

Goodman arranged to buy crack cocaine from Leasure, who told Goodman he would have someone

drop off the drugs at the informant’s hotel room. With the police in an adjoining room monitoring

the transaction, Angelo Handley came to the hotel, sold Goodman drugs, and was arrested by the

police. Leasure telephoned Goodman to find out whether the drugs had been delivered; and

Goodman responded, untruthfully, that no one had come. Officer Yook, who was listening to the

conversation between Leasure and Goodman, testified that Leasure responded that he would bring

the drugs to the hotel room himself. When Leasure had not arrived after approximately fifteen

minutes, the police again instructed Goodman to call Leasure, who said that he would be there

shortly. Soon after, Leasure arrived. He did not have drugs on him, but he said that he would call

to arrange someone to bring crack cocaine to the hotel. He made a phone call; and after waiting a

while, the police observed a black Nissan Maxima pull into the parking lot. Officer Yook testified

that he witnessed Leasure approach the car and receive something from the driver. Leasure went

back to the hotel room, handed Goodman drugs, and the police arrested Leasure and the two

passengers of the car, Tasha Benjamin and Hobart Mitchell. The police recovered $2,201 and 7

grams of crack cocaine from Benjamin’s purse, and 4 grams of crack cocaine and 0.8 grams of

marijuana from Mitchell. The police found three bags of suspected cocaine on Leasure, but only 1.2

grams of the substance in one bag was confirmed to be cocaine; the other bags contained fake drugs.

2
 A grand jury in the Eastern District of Tennessee indicted Leasure, along with co-defendants

Benjamin and Mitchell, for 1) conspiracy to distribute and to possess with intent to distribute five

grams or more of cocaine base, and 2) aiding and abetting the distribution of cocaine base. Benjamin

and Mitchell were additionally charged with possession of cocaine base with intent to distribute.

Leasure’s two co-defendants entered guilty pleas.

Before trial, Leasure spoke on the phone with Goodman from jail. The two of them had

mutual acquaintances, including Goodman’s brother-in-law, who was in jail with Leasure.

Goodman’s brother-in-law was talking to Goodman from jail and handed the phone to Leasure.

Leasure claims that he simply asked how Goodman’s sick wife was doing. Goodman claims that

Leasure threatened him and his son and told him not to testify in Leasure’s trial. After reporting the

incident to the police, Goodman was relocated to a new residence. Goodman further claims that

Leasure arranged for others to harass Goodman’s family and threaten them. The district court

admitted this testimony at trial under Federal Rule of Evidence (“Rule”) 404(b), finding that it was

more probative of Leasure’s guilt than prejudicial.

At trial, the government called the following individuals as witnesses: Goodman; Oak Ridge

Investigators Jock Coleman and Brian Yook; Oak Ridge Officers Daniel Freytag, John Kelly, Kevin

Thacker, and Mike Uher; David Holloway, an expert in the field of drug analysis; Dave Lewis, an

expert witness in narcotics trafficking; and Celeste White, an expert in the field of drug analysis.

Leasure also took the stand. Over Leasure’s objection, Lewis testified generally as to the botanical

origin of cocaine; its normal distribution path to the United States; its effect on the body; and general

characteristics of drug users, drug traffickers, and drug deals. Lewis testified that the facts of this

3
case, including the cash found on Benjamin, the separate car driven by Benjamin and Mitchell, and

the fake cocaine on Leasure, were typical of drug conspiracies.

After three hours of deliberations, the jury sent a note informing the district court that it was

unable to reach a unanimous verdict. The district court, with the consent of Leasure and the

government, gave the jury a supplemental charge pursuant to Allen v. United States, 164 U.S. 492

(1896), which was identical to the Sixth Circuit’s pattern instruction Allen charge. At the end of the

day, the foreperson stated that the jury had reached a verdict on one count. He then said that as he

was walking into the courtroom, the jury had changed its mind and no longer had a verdict. The jury

returned the next business day and sent a note asking the following: “If we can reach no agreement

on one count, but do reach an agreement on the other, is that sufficient?” The district court

responded that a verdict on any count would be sufficient. The jury convicted Leasure on count two

of the indictment only, involving the January 6 transaction. At Leasure’s sentencing hearing, the

district court attributed 12.2 grams of cocaine to Leasure, concluding that the 7 grams of cocaine

found on Benjamin, the 4 grams on Mitchell, and the 1.2 grams on Leasure were attributable to

Leasure. The district court also determined that Leasure was a Career Offender within the meaning

of U.S.S.G. § 4B1.1 because of his two prior drug felonies. His total offense level was 34, and his

criminal history category was VI, resulting in a recommended sentence of 262 to 327 months under

the Guidelines. Based in part on the fact that Leasure was found with “the smallest amount of drugs

that th[e] court ha[d] ever dealt with,” the district court granted a downward variance, and Leasure

received a sentence of 200 months imprisonment and 6 years of supervised release. The government

moved to dismiss count one of the indictment, and the district court dismissed the count without

4
prejudice. Leasure filed a motion for a new trial, which the district court denied. Leasure timely

appealed to this court.
II.
A. Did the district court err in admitting evidence of Leasure’s threats to Goodman?
We review the district court’s admission or exclusion of evidence for an abuse of discretion.

See United States v. Perry, 438 F.3d 642, 647 (6th Cir. 2006). Rule 404(b) prohibits the admission

of “[e]vidence of other crimes, wrongs, or acts” to prove the character of the defendant but allows

for its admission to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident[.]” Fed. R. Evid. 404(b). This list is not exhaustive, see United

States v. Hardy, 228 F.3d 745, 750 (6th Cir. 2000), and we have interpreted Rule 404(b) to allow

evidence of other acts when they show “consciousness of guilt.” United States v. Mendez-Ortiz, 810

F.2d 76, 79 (6th Cir. 1986). In reviewing the admission of evidence under Rule 404(b), we perform

the following three-step analysis: (1) review for clear error a district court’s factual determination

that the “other act” occurred; (2) review de novo the district court’s legal determination that the

evidence was admissible for a proper purpose; and (3) review for abuse of discretion the district

court’s determination that the probative value of the evidence is not substantially outweighed by its

prejudicial effect. Perry, 438 F.3d at 647.

Leasure argues that the district court abused its discretion by allowing the jury to hear

evidence of Leasure’s threats to Goodman. First, Leasure claims that no threats were made. On its

motion to admit the evidence under Rule 404(b), the government argued that Leasure threatened

Goodman at least twice: 1) via telephone from the jail, which resulted in Goodman’s relocation by

the police, and 2) via acquaintances of Leasure who went to Goodman’s former residence two weeks

5
before trial and tried to induce Goodman not to testify. Leasure’s counsel disputed that the threats

were made over the telephone but did not address the second allegation. Based on the government’s

proffer that it had records demonstrating that Goodman was relocated on account of the first threat

and the fact that Leasure’s counsel did not contest the second threat, the district court did not err in

determining that the acts occurred.

As for the second prong, it is well-established that evidence of threats or intimidation is

“admissible to show consciousness of guilt.” Mendez-Ortiz, 810 F.2d at 79 (collecting cases);

United States v. Blackwell, 459 F.3d 739, 768 (6th Cir. 2006). The district court correctly concluded

that the evidence was admissible for a proper purpose.

Lastly, Leasure claims that the evidence regarding his threats was overly prejudicial. In

analyzing the balance between probative and prejudicial value, we must “look at the evidence in a

light most favorable to its proponent, maximizing its probative value and minimizing its prejudicial

effect.” Perry, 438 F.3d at 648 (quoting United States v. Zipkin, 729 F.2d 384, 389 (6th Cir. 1984)).

Leasure argues that Goodman’s testimony was unreliable and did not support the government’s

proffer of the evidence. Leasure bases his argument on the fact that the government played a tape

recording of the alleged threats made by Leasure to Goodman over the telephone, which was so

muffled that the exact words in the conversation between Leasure and Goodman were unclear.

Goodman’s testimony, however, was consistent with the government’s proffer, as was the testimony

of the officer to whom Goodman reported the threats. The district court anticipated this testimony

6
and gave the jury a limiting instruction.1 See Perry, 438 F.3d at 649 (finding that the district court

did not err in admitting the evidence when it gave the jury an appropriate limiting instruction). The

district court therefore did not abuse its discretion in concluding that the probative value of the

evidence of Leasure’s threats to Goodman was not substantially outweighed by its prejudicial effect

and thus did not err in allowing the jury to hear the evidence.

B. Did the district court err in admitting Lewis’s expert testimony?

We review determinations of expert witnesses’ relevance and unfair prejudice for an abuse

of discretion. United States v. Whittington, 455 F.3d 736, 738 (6th Cir. 2006). An abuse of

discretion is found only when “the reviewing court is firmly convinced that a mistake has been

made.” Id. (citing United States v. Williams, 952 F.2d 1504, 1518 (6th Cir. 1991)). “An erroneous

admission of evidence that does not affect the ‘substantial rights’ of a party is considered harmless,

and should be disregarded.” United States v. Cope, 312 F.3d 757, 775 (6th Cir. 2002).

1
The limiting instruction was as follows:

You have heard testimony that the defendant committed acts other than the ones
charged in the Indictment. If you find the defendant did those acts, you may consider
the evidence only as it relates to the government’s claim on the defendant’s
consciousness of guilt. You must not consider it for any other purpose.

Remember that the defendant is on trial here only for the offenses charged in the
Indictment, not for the other acts. Do not return a guilty verdict unless the
government proves the crime charged in the Indictment beyond a reasonable doubt.

7
 Rule 702 allows expert testimony if the expert is qualified and if his testimony “will assist

the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702. “Our

court regularly allows qualified law enforcement personnel to testify on characteristics of criminal

activity, as long as appropriate cautionary instructions are given, since knowledge of such activity

is generally beyond the understanding of the average layman.” United States v. Swafford, 385 F.3d

1026, 1030 (6th Cir. 2004) (quoting United States v. Thomas, 99 F. App’x 665, 668-69 (6th Cir.

2004)).

Leasure claims that the district court’s admission of Lewis’s testimony was an abuse of

discretion and had a material affect on the outcome of the trial. Leasure argues that the long

narrative of Lewis’s testimony on the coca plant, the process of cocaine extraction from the plant,

the common course of drug trafficking, the effects of cocaine on the body, and the language of the

drug culture was irrelevant and improperly admitted because Lewis was never qualified as a botanist,

a chemist, a behavioral scientist, a doctor, or an anthropologist, respectively. Leasure also argues

that Lewis’s testimony, in particular his speculations as to the value of Leasure’s crack and the

amount of crack Benjamin must have sold to make $2,200 as well as Lewis’s conclusion that the

facts of this case represent a typical drug deal, are so misleading as to meet the test for abuse of

discretion.

Lewis’s opinions, however, are consistent with expert testimony regularly allowed by this

court. See Swafford, 385 F.3d at 1030 (collecting cases); United States v. Quinn, 230 F.3d 862, 866

(6th Cir. 2000) (officer testified that the amount of drugs suggested distribution instead of personal

use); United States v. Dillard, 78 F. App’x 505, 514-15 (6th Cir. 2003) (same); United States v.

8
Jones, 81 F. App’x 45, 48 (6th Cir. 2003) (same). Moreover, Lewis’s testimony did not exceed the

scope of his expertise, as his twenty years of experience as a special agent for the Drug Enforcement

Administration qualifies him to discuss the different stages of the drug chain and distribution

process. Under the highly deferential standard applied to determinations of admissibility, we find

that the district court did not abuse its discretion in admitting Lewis’s expert testimony.2

C. Did the district court abuse its discretion by allowing the jury to return a verdict after
an Allen charge?

The Supreme Court authorized the use of a supplemental charge more than a century ago in

Allen v. United States. 164 U.S. at 501. In what is now known as an “Allen charge,” district courts

can charge a deadlocked jury upon their return for further instructions that:

in a large proportion of cases absolute certainty could not be expected; that although
the verdict must be the verdict of each individual juror, and not a mere acquiescence
in the conclusion of his fellows, yet they should examine the question submitted with
candor and with a proper regard and deference to the opinions of each other; that it
was their duty to decide the case if they could conscientiously do so; that they should
listen, with a disposition to be convinced, to each other’s arguments; that, if much the
larger number were for conviction, a dissenting juror should consider whether his
doubt was a reasonable one which made no impression upon the minds of so many
men, equally honest, equally intelligent with himself. If, upon the other hand, the
majority was for acquittal, the minority ought to ask themselves whether they might
not reasonably doubt the correctness of a judgment which was not concurred in by
the majority.

Id. We generally review a district court’s decision to give a jury an Allen charge under the abuse of

discretion standard. United States v. Clinton, 338 F.3d 483, 487 (6th Cir. 2003). Where there was

no objection to the Allen charge at trial, however, we “review the defendant’s claim under Rule 52(b)

2
Furthermore, we note that even if parts of his testimony were not relevant, any error was
harmless in light of the other overwhelming testimony indicating Leasure’s guilt, see Quinn, 230
F.3d at 868, and the lack of verdict on the conspiracy charge.

9
of the Federal Rules of Criminal Procedure to determine whether there was plain error.” Id. A

defendant must show the following to establish plain error: (1) an error occurred; (2) the error was

plain; (3) the error “so seriously affected the defendant’s substantial rights (4) that it called into

question the fairness, integrity, or public reputation of the proceedings.” Id. Significantly, we have

held that we “generally prefer the usage of the Sixth Circuit pattern jury instruction and ‘its use will,

in most instances, insulate a resulting verdict’ from challenge on appeal.” United States v. Roach,

502 F.3d 425, 439 (6th Cir. 2007) (quoting Clinton, 338 F.3d at 488).

In this case, the jury deliberated for three hours and then sent a note to the district court

stating that it was unable to reach a unanimous verdict. The district court, with the consent of

Leasure and the government, gave the jury an Allen charge that was identical to the Sixth Circuit’s

pattern Allen instruction. The jury was still unable to come to a conclusion at the end of the day,

changing its mind on the verdict as the foreperson walked into the courtroom. The following

Monday, the jury returned and sent a note asking the following: “If we can reach no agreement on

one count, but do reach an agreement on the other, is that sufficient?” The district court said that

a verdict on any count would be sufficient. Seizing on the question in the note, “is that sufficient?”

Leasure argues that these facts show that the jury felt coerced into finding a verdict after receiving

the Allen charge.

While the jury’s difficulty in reaching consensus in this case is clear, Leasure has

nevertheless failed to establish that a plain error occurred. First, the district court used the Sixth

Circuit pattern Allen charge. As mentioned above, use of the Sixth Circuit pattern Allen charge

generally “insulate[s] a resulting verdict from challenge on appeal,” Roach, 502 F.3d at 439 (internal

10
quotation marks omitted). Second, the district court gave the Allen charge after three hours of

deliberation. The timing of an Allen charge is left to the trial court’s discretion, but we have stated

that “the possibility of coercion is reduced if the charge is given early rather than after days of

deadlocked deliberations.” United States v. Tines, 70 F.3d 891, 896 (6th Cir. 1995); United States

v. Sawyers, 902 F.2d 1217, 1220 (6th Cir. 1990) (rejecting a challenge that an Allen charge was

coercive when it was given after three hours of deliberation). Furthermore, the jury never reached

a verdict on count one of the indictment, showing that it did not feel coerced to convict Leasure after

receiving the Allen charge. The district court’s recitation of an Allen charge thus does not constitute

plain error.

D. Has Leasure demonstrated that his sentence is unreasonable?

We review a district court’s sentencing determination for reasonableness. Gall v. United

States, __ U.S. __, 128 S. Ct. 586, 594 (2007). A review for reasonableness includes both

procedural and substantive reasonableness. United States v. Sedore, 512 F.3d 819, 822 (6th Cir.

2008) (citing United States v. Liou, 491 F.3d 334, 337 (6th Cir. 2007)). Procedural error includes

“failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence.” Gall, 128 S. Ct. at 597. If

the sentence is procedurally sound, we review the sentence for substantive reasonableness under an

abuse of discretion standard. Id.

Leasure raises five separate challenges to the reasonableness of his sentence. We will address

each in turn.

11
1. Did the district court err in applying the Guidelines as if they were mandatory in
violation of Leasure’s Sixth Amendment rights?

“[A] district court should begin all sentencing proceedings by correctly calculating the

applicable Guidelines range.” Gall, 128 S. Ct. at 596. After calculating the Guidelines range, the

district court should hear the parties’ arguments, consider the relevant 18 U.S.C. § 3553(a) factors,

and determine a sentence. Id.

Leasure argues that the district court committed reversible procedural error by treating the

Guidelines as mandatory. He argues that the district court should have “treated the guidelines as

advisory and rejected the career offender guidelines.” Leasure’s argument fails for two reasons.

First, the district court did treat the Guidelines as advisory and granted Leasure a downward variance

of 62 months. See United States v. Guest, __ F.3d __, 2009 WL 1175172, at *3 (6th Cir. May 4,

2009) (refusing to remand when “there is no indication in the record that the district court thought

its ability to vary the sentence . . . was in any way constrained”). Second, to the extent Leasure

contends that the district court erred by calculating the Guidelines range at all, this argument is

foreclosed by the Supreme Court’s admonition that district courts are required to “begin all

sentencing proceedings by correctly calculating the applicable Guidelines range.” Gall, 128 S. Ct.

at 596. The district court correctly calculated the Guidelines range to be 262 to 327 months and did

not treat the Guidelines range as mandatory.

2. Did the district court properly consider the relevant 18 U.S.C. § 3553(a) factors?

Leasure next claims that the district court committed reversible error by not considering the

sentencing factors found in 18 U.S.C. § 3553(a). This court requires an “articulation of the reasons

the district court reached the sentence ultimately imposed.” United States v. Jackson, 408 F.3d 301,

12
305 (6th Cir. 2005); see also 18 U.S.C. § 3553(c). Leasure argues that the district court “failed to

properly consider sentencing factors pursuant to 18 U.S.C. § 3553(a).” The record contradicts

Leasure’s argument. The district court discussed, among other considerations, the nature and

circumstances of the offense, the history and characteristics of the defendant, the need for the

sentence imposed, and policy implications. The district court considered the factors required by 18

U.S.C. § 3553(a), applied them to the individual circumstances present, and articulated its reasons

for the lesser sentence it imposed. Therefore this procedural challenge is without merit.

3. Did the district court use inappropriate judicial fact-finding to determine the amount of
drugs attributable to Leasure?

Leasure claims that the district court erred in attributing the drugs found on Benjamin and

Mitchell to him for sentencing purposes. The jury returned a verdict convicting Leasure of aiding

and abetting the distribution of cocaine base, but the verdict did not specify the amount of drugs

involved. At sentencing, the district court found that 12.2 grams of cocaine were attributable to

Leasure, including the 1.2 grams found on Leasure, 7 grams found on Benjamin, and 4 grams found

on Mitchell. Leasure argues that the district court engaged in improper judicial fact-finding in

determining the amount of drugs attributable to him.

It is well-established that district courts can make findings of fact by a preponderance of the

evidence for sentencing purposes. See United States v. Ferguson, 456 F.3d 660, 665 (6th Cir. 2006).

Moreover, Leasure was sentenced under the career offender provision of the Guidelines, which was

in no way affected by the district court’s finding. See U.S.S.G. § 4B1.1(b). The amount of drugs

attributable to Leasure did not adversely affect the selection of his sentence; to the contrary, the

13
district court found that the small amount of 1.2 grams found on Leasure was a mitigating factor

weighing in favor of a downward variance.

4. Does the recent amendment of the Guidelines require resentencing?

Leasure next argues that his sentence should be reduced pursuant to an amendment to the

Guidelines for cocaine base offenses. Effective November 1, 2007, the Sentencing Commission

lowered the recommended sentencing ranges for cocaine base offenses by two levels. U.S.S.G. §

2D1.1, Amendment 607 (2007). Because of this amendment, Leasure argues that he should be

resentenced because he did not receive the benefit of the amended provision. The Guidelines

specifically authorize a district court to reduce a sentence “in the case of a defendant who has been

sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered

by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). However, this reduction only applies if

the defendant was sentenced under the provision that was amended. Because Leasure’s offense level

was calculated pursuant to the unchanged career offender provision, U.S.S.G. § 4B1.1(a), the

amendment does not affect his sentence. See U.S.S.G. § 4B1.1(b) (“[I]f the offense level for a career

offender from the table in this subsection is greater than the offense level otherwise applicable, the

[career offender] offense level from the table in this subsection shall apply.”). If Leasure were

sentenced today, he would still have a total offense level of 34 because of his prior felony drug

convictions and criminal history category of VI, which would result in the identical Guidelines range

of 262 to 327 months under which he was originally sentenced. Because the amendment does not

affect Leasure’s sentence, we deny Leasure’s request for resentencing on this ground.

14
5. Does Leasure’s sentence violate the Eighth Amendment?

Finally, Leasure claims that his 200-month sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment because it is disproportionate to his crime.

Because he did not raise this constitutional challenge at the sentencing hearing, we review this claim

for plain error. See United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).

“[T]he Eighth Amendment ‘does not require strict proportionality between crime and

sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.”

United States v. Walls, 546 F.3d 728, 738 (6th Cir. 2008) (alteration in original) (quoting United

States v. Layne, 324 F.3d 464, 473 (6th Cir. 2003)). The Supreme Court has held that a mandatory

life sentence for a drug violation is not a per se violation of the Eighth Amendment. See Harmelin

v. Michigan, 501 U.S. 957, 1005 (1991) (Kennedy, J., joined by O’Connor, J., and Souter, J.,

concurring). It follows that a 200-month sentence, imposed as a downward variance from the

Guidelines range, also “does not give rise to an inference of gross disproportionality.” Id.

Furthermore, although Leasure was found with only 1.2 grams on his person, he had an

extensive criminal history. And, it is worth emphasizing, the district court did grant a downward

variance from the Guidelines range, which itself would have been considered presumptively

reasonable on appeal. United States v. Curry, 536 F.3d 571, 573 (6th Cir. 2008) (“[S]imple logic

compels the conclusion that, if a sentence [within the Guidelines range] would have been

presumptively reasonable in length, defendant’s task of persuading us that the more lenient sentence

. . . is unreasonably long is even more demanding.”); United States v. Bailey, 264 F. App’x 480, 485

(6th Cir. 2008) (“[I]t follows from simple logic that the below-Guidelines sentence . . . is presumed

15
not to be unreasonably severe.”). Thus Leasure’s sentence is not constitutionally disproportionate

to his crime.3

III.

For the foregoing reasons, we affirm Leasure’s conviction and sentence.

3
In his appellate brief, Leasure listed two additional arguments: He challenged the
sufficiency of the evidence and claimed that the district court committed reversible error by
permitting a constructive amendment to the indictment. At oral argument, Leasure conceded that
current case law does not support either of these arguments. We agree and will not address these two
arguments.

16