UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4337
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEON S. WESTBERRY,
Defendant - Appellant.
No. 11-4338
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEON S. WESTBERRY,
Defendant - Appellant.
Appeals from the United States District Court for the District
of South Carolina, at Florence and Columbia. R. Bryan Harwell,
District Judge. (4:10-cr-00093-RBH-1; 3:02-cr-01150-RBH-1)
Submitted: June 29, 2012 Decided: August 1, 2012
Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James M. Griffin, LEWIS, BABCOCK & GRIFFIN, L.L.P., Columbia,
South Carolina, for Appellant. William N. Nettles, United States
Attorney, Jeffrey Mikell Johnson, Robert F. Daley, Jr.,
William E. Day, II, Assistant United States Attorneys, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In 2003, Leon S. Westberry pleaded guilty to two
counts of mail fraud, in violation of 18 U.S.C. § 1341 (2006).
The district court sentenced Westberry to thirty-seven months of
imprisonment, followed by three years of supervised release, and
ordered Westberry to make restitution in the amount of
$1,536,000. Subsequently, Westberry was convicted by the
district court following a bench trial of thirty-six counts of
knowingly and willfully making material false statements, in
violation of 18 U.S.C.A. § 1001(a) (West 2006 & Supp. 2011).
The district court also found that Westberry had violated the
terms of his supervised release for the conduct underlying the
new convictions and for other false statements made to
Westberry’s probation officer. The court sentenced Westberry to
sixty months of imprisonment for the counts of conviction, plus
nine months of imprisonment for the supervised release
revocation, to be served concurrently.
Westberry now appeals and, with respect to the appeal
of the revocation of supervised release, counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
questioning whether the district court erred in revoking
Westberry’s supervised release and unreasonably delayed holding
a hearing on the supervised release revocation. Westberry was
informed of his right to file a pro se supplemental brief but
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has not done so. Finding no error, we affirm the judgment of
the district court in all respects.
Westberry first argues that his new criminal
convictions must be reversed because his statements to his
probation officer fall within the judicial function exception to
the statute. As Westberry failed to raise this issue before the
district court, we review for plain error. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993); see
also United States v. Grace, 396 F. App’x 65 (5th Cir. 2010)
(reviewing same issue for plain error). To meet this standard,
Westberry must demonstrate that there was error, that was plain,
and that affected his substantial rights. Olano, 507 U.S. at
731-32. Moreover, even if Westberry demonstrates plain error
occurred, we will not exercise our discretion to correct the
error “unless the error seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.
(internal quotation marks and citation omitted).
Pursuant to 18 U.S.C.A. § 1001(a)(2), a defendant may
not, in any matter within the jurisdiction of the judicial
branch, make any materially false statement or representation.
This section does not apply, however, “to a party to a judicial
proceeding . . . for statements, representations, writings or
documents submitted by such party . . . to a judge or magistrate
in that proceeding.” 18 U.S.C. § 1001(b) (2006). This court
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has not construed the judicial function exception in the context
of statements made to a probation officer. Two circuits,
however, have reached opposite conclusions on similar issues.
Compare United States v. Hovarth, 492 F.3d 1075 (9th Cir. 2007)
(finding exception applied to statements to probation officer
conducting presentence investigation); with United States v.
Manning, 526 F.3d 611 (10th Cir. 2008) (exception did not apply
to failure to include retirement account in financial statement
to probation officer conducting presentence investigation). As
there is no binding precedent in this Circuit, and as there is a
conflict among other circuits regarding the applicability of the
exception to this situation, any error by the district court was
not clear and obvious. See United States v. Rhodes, 32 F.3d
867, 871 (4th Cir. 1994) (for error to be plain it must be
“clear or obvious”). Accordingly, regardless of the ultimate
merit of Westberry’s argument, he cannot satisfy the high
standard of plain error review.
Westberry next argues that his statements to his
probation officer regarding his financial situation were not
material because the probation officer could not alter the terms
of the restitution order. Westberry also challenges the
sufficiency of the evidence to demonstrate that he knowingly and
willfully made the misrepresentations. “Our review of the
district court’s finding of materiality is necessarily limited.”
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United States v. Garcia-Ochoa, 607 F.3d 371, 376 (4th Cir.
2010). “Materiality, as an element of a criminal offense, is a
question of fact (or at the very least, a mixed question of law
and fact) to be resolved by the fact finder, which in the case
of a bench trial is the federal district judge.” Id. (citations
omitted). Following a bench trial, we review a district court’s
factual findings for clear error and review a challenge to the
sufficiency of the evidence “in the light most favorable to the
government in order to decide whether any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Id. (internal quotation marks, alteration,
and citations omitted).
To be material, statements must “ha[ve] a natural
tendency to influence, or [have been] capable of influencing,
the decision of the decisionmaking body to which [they were]
addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988);
see also Garcia-Ochoa, 607 F.3d at 375 (“The test of materiality
is whether the false statement has a natural tendency to
influence agency action or is capable of influencing agency
action.”) (citations omitted). We have thoroughly reviewed the
record and conclude that the district court did not err in
finding Westberry guilty of the offenses, as there was
substantial evidence to show that Westberry’s false statements
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were material and that Westberry knowingly and willfully made
the misrepresentations.
Westberry also argues that the convictions for the
first thirty-two counts of the indictment must be vacated
because the court’s findings following the bench trial
demonstrate that the court constructively amended the
indictment. “A constructive amendment to an indictment occurs
when either the government (usually during its presentation of
evidence and/or its argument), the court (usually through its
instructions to the jury), or both, broadens the possible bases
for conviction beyond those presented by the grand jury.”
United States v. Hackley, 662 F.3d 671, 682 n.6 (4th Cir. 2011)
(internal quotation marks and citation omitted). Constructive
amendments are “fatal variances 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. Perry, 560 F.3d
246, 256 (4th Cir. 2009) (internal quotation marks and citations
omitted).
A constructive amendment is “error per se and is an
independent ground for reversal on appeal even when not
preserved by an objection.” United States v. Roe, 606 F.3d 180,
189-90 (4th Cir. 2010) (citation omitted). After having
carefully considered the record and the relevant legal
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authorities, we conclude that the district court did not
constructively amend the indictment.
With respect to the court’s revocation of Westberry’s
supervised release, appellate counsel first questions whether
the district court abused its discretion in finding that
Westberry violated the terms of his supervised release. We
review the district court’s revocation of supervised release for
abuse of discretion. See United States v. Pregent, 190 F.3d
279, 282 (4th Cir. 1999). The district court need only find a
violation of a term of supervised release by a preponderance of
the evidence. 18 U.S.C.A. § 3583(e)(3) (West Supp. 2008); see
United States v. Armstrong, 187 F.3d 392, 394 (4th Cir. 1999).
Appellate courts review for clear error factual determinations
underlying the conclusion that a violation occurred. United
States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003). As
discussed above, the district court did not err in finding that
Westberry made materially false statements to his probation
officer. We therefore conclude that the court did not err in
finding, based in part on the finding of guilt of the new
offenses, that Westberry violated the terms of his supervised
release.
Finally, counsel questions whether the court
unreasonably delayed holding a hearing on the probation
officer’s petition for revocation of supervised release, filed
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fifteen months prior to the revocation hearing. However, the
district court held the revocation hearing at the same time in
conjunction with the sentencing proceeding for Westberry’s new
criminal convictions. As the facts supporting the petition for
revocation of supervised release were intertwined with the facts
supporting the new criminal charges, the district court acted
well within its discretion in holding the supervised release
revocation hearing after the trial for the new charges was
completed.
We have examined the entire record in accordance with
the requirements of Anders with regard to the supervised release
revocation and have found no meritorious issues for appeal.
Accordingly, we affirm the judgment of the district court. This
court requires that counsel inform Westberry, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Westberry 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 Westberry. 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 in the
decisional process.
AFFIRMED
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