US v. Allen Alleyne, No. 11-4208 (4th Cir. 2011)

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The court issued a subsequent related opinion or order on September 24, 2013.

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4208 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALLEN RYAN ALLEYNE, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:10-cr-00134-REP-1) Submitted: November 30, 2011 Decided: December 15, 2011 Before WILKINSON, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire, Assistant Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Michael R. Gill, Assistant United States Attorney, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Allen Ryan Alleyne appeals his resulting 130-month custodial sentence. conviction and A federal jury found Alleyne guilty of robbery affecting commerce in violation of 18 U.S.C. §§ 1951(a), 2 (2006) and use or carry of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. §§ 924(c), 2 (2006). Alleyne We affirm the judgment. first argues that the evidence insufficient to support either of his convictions. was We review the denial of a motion for a judgment of acquittal de novo. United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). A defendant challenging the sufficiency of the evidence faces a heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). viewing the evidence prosecution, evidence. evidence The verdict of a jury must be sustained if, the in the verdict light is most supported Smith, 451 F.3d at 216. that a reasonable favorable finder by to the substantial Substantial evidence is of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. Id. (internal quotation marks omitted). Reversal for insufficient evidence is reserved for the case rare where the prosecution s failure is clear. Beidler, 110 F.3d at 1067 (internal quotation marks omitted). 2 Importantly, we do not review the credibility of the witnesses and assume that the jury resolved all contradictions in the testimony in favor of the government. Foster, 507 F.3d 233, 245 (4th Cir. 2007). United States v. We are mindful that the jury, not the reviewing court, weighs the credibility of the evidence presented. and resolves any conflicts in the evidence Beidler, 110 F.3d at 1067 (internal quotation marks and brackets omitted). Alleyne fails to persuade us that the evidence against him was insufficient to sustain his convictions. He claims that the only witness who connected him to the robbery was inherently incredible. We refuse to substitute assessment for that of the jury. our own credibility Moreover, independent evidence corroborated much of the witness testimony. Although no direct testimony established that he participated in the use of the firearm, such participation an in inference the planning was and reasonable execution given of the Alleyne s robbery. Alleyne s sufficiency of the evidence arguments lack merit. Alleyne contends that he was convicted under a theory of aiding and abetting liability despite an unambiguous charge in the indictment that he acted as the principal. He claims that the Government s presentation of evidence and the court s jury instructions on aiding constructively amended the indictment. 3 and abetting liability 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. Floresca, 38 F.3d 706, 710 (4th Cir. 1994). constructive indictment charged, crime is such other amendment altered is that than a fatal change the elements of defendant is actually convicted to the that charged in variance the because the indictment. A the offense of a United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (internal quotation marks omitted). A constructive amendment is error per se, and, given the Fifth Amendment right to be indicted by a grand jury, must be preserved by objection. corrected on appeal, even when not Floresca, 38 F.3d at 714. Because the aiding and abetting provision [18 U.S.C. § 2] does not set forth an essential element of the offense with which the defendant is charged or itself create a separate offense, aiding and abetting liability need not be charged in an indictment. Cir. 2010). United States v. Ashley, 606 F.3d 135, 143 (4th A defendant may be convicted of aiding and abetting under an indictment which charges only the principal offense. United States v. Duke, 409 F.2d 669, 671 (4th Cir. 1969). 4 We do constructively not find amended that during Alleyne s indictment trial. The was indictment specifically charged violation of 18 U.S.C. § 2 (2006), thereby putting Alleyne abetting theory. on notice of the Government s aiding and See United States v. Robinson, 956 F.2d 1388, 1394-95 (7th Cir. 1992). He was not convicted of a crime other than that charged in the indictment. Nor do we find that the presentation of the aiding and abetting theory of liability constituted a prejudicial variance. No impermissible prejudice occurs if the indictment provides the defendant with adequate notice of the charges against him and is sufficient to allow the defendant to plead it as a bar to United States v. Redd, 161 F.3d 793, subsequent prosecutions. 795-96 (4th Cir. 1998). the Government s Alleyne was indisputably on notice of intention to pursue theory of liability before his trial. that the indictment against him. is an aiding and abetting Alleyne has not alleged insufficient to bar re-prosecution We do not find a prejudicial variance on these facts. Alleyne s final appellate argument is that the district court erred by holding him responsible at sentencing for brandishing a firearm. The court s finding elevated Alleyne s mandatory minimum sentence for the firearm conviction from five years to seven years pursuant to 18 U.S.C. 924(c). 5 We review a district court s factual findings at sentencing for clear error. United States v. Pauley, 289 F.3d 254, 258 (4th Cir. 2002). We first note, as Alleyne has conceded, that Supreme Court precedent constitutional finding that despite the offense. do not forecloses rights he was jury s were any violated accountable finding argument that by for he that the district brandishing was Alleyne s not the guilty court s firearm of that Harris v. United States, 536 U.S. 545, 556 (2002). find the district court s finding otherwise We clearly erroneous. 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 the court and argument would not aid the decisional process. AFFIRMED 6