UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4575
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
NADIN SAMNANG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cr-00575-GBL-1)
Submitted: May 30, 2013 Decided: June 18, 2013
Before KING, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Shanlon Wu, WU, GROHOVSKY & WHIPPLE, PLLC, Washington, D.C., for
Appellant. Neil H. MacBride, United States Attorney, Paul J.
Nathanson, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A federal jury convicted Nadin Samnang of conspiracy
to commit wire and mail fraud, in violation of 18 U.S.C.A.
§ 1349 (West Supp. 2012); nine counts of wire fraud, in
violation of 18 U.S.C.A. § 1343 (West Supp. 2012); and two
counts of mail fraud, in violation of 18 U.S.C.A. § 1341 (West
Supp. 2012). The district court sentenced Samnang to
eighty-four months of imprisonment and he now appeals. Finding
no error, we affirm.
Samnang first argues on appeal that the district court
abused its discretion in denying his requests for a continuance
of the trial based on counsel’s lack of preparation. We review
the denial of a motion for a continuance for abuse of
discretion. United States v. Cole, 631 F.3d 146, 156 (4th Cir.
2011). “[E]ven if such an abuse is found, the defendant must
show that the error specifically prejudiced [his] case in order
to prevail.” United States v. Williams, 445 F.3d 724, 739 (4th
Cir. 2006) (internal quotation marks and citation omitted). We
have thoroughly reviewed the record and conclude that the
district court did not abuse its discretion in denying Samnang’s
additional continuance requests after the court, upon Samnang’s
motion, had already granted a continuance of the trial date by
more than one month.
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Samnang next argues that the court erred by including
in the loss calculation under the Sentencing Guidelines the loss
attributable to a property that was not listed in the
indictment. Samnang argues that this created a fatal variance
that prejudiced him because it resulted in increased penalties.
“When the government, through its presentation of evidence or
its argument, or the district court, through its instructions to
the jury, or both, 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. 2013)
(internal quotation marks and citation omitted), petition for
cert. filed, (U.S. Apr. 23, 2013) (No. 12-1271). “[A] fatal
variance occurs when 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.” Id. (internal quotation marks and citation
omitted).
We have reviewed the record and the relevant legal
authorities and conclude that there was no variance. Samnang
does not allege that the Government produced evidence related to
this uncharged property at trial, resulting in a variance
between the indictment and the evidence at trial. On the
contrary, Samnang concedes that the Government produced no such
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evidence in its case in chief. Moreover, Samnang’s reliance on
United States v. Stigler, 413 F.3d 588 (7th Cir. 2005) is
misplaced. The Seventh Circuit in Stigler determined that a
fatal variance occurred where the government presented evidence
of more than one conspiracy where the indictment charged only
one conspiracy. Id. at 592. The variance prejudiced the
defendant by increasing the number of victims under the
Guidelines, resulting in additional enhancement at sentencing.
Id. at 593. Here, however, there was no constructive amendment
to the indictment or fatal variance between the indictment and
the evidence adduced at trial and therefore we need not reach
the issue of prejudice.
Moreover, to the extent that Samnang argues that the
district court erred in including this property as relevant
conduct for the loss calculations under the Guidelines, his
failure to raise this issue in his opening brief waives
appellate review. Even were we to review this issue, however,
it lacks merit as the district court correctly found the
relevant conduct by a preponderance of the evidence. See U.S.
Sentencing Guidelines Manual § 1B1.3(a) (definition of relevant
conduct); see also United States v. Miller, 316 F.3d 495, 504
(4th Cir. 2003) (the district court “need only make a reasonable
estimate of the loss” by a preponderance of the evidence).
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Accordingly, we affirm the judgment of the district
court. 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 in the decisional
process.
AFFIRMED
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