US v. Nadin Samnang, No. 12-4575 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4575 UNITED STATES OF AMERICA, Plaintiff Appellee, v. NADIN SAMNANG, Defendant - Appellant.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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 § 1349 wire (West violation and mail Supp. of 18 fraud, 2012); U.S.C.A. in nine violation counts § 1343 (West of Supp. of 18 wire U.S.C.A. fraud, 2012); and in two counts of mail fraud, in violation of 18 U.S.C.A. § 1341 (West Supp. 2012). The district court sentenced Samnang eighty-four months of imprisonment and he now appeals. to 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 abuse denial discretion. 2011). of a motion for a continuance for of United States v. Cole, 631 F.3d 146, 156 (4th Cir. [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). have thoroughly reviewed the record and conclude that We 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. 2 Samnang next argues that the court erred by including in the loss calculation under the Sentencing Guidelines the loss attributable indictment. to a property that was not listed in the 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, those or both, charged sometimes States in the referred v. broadens to the bases for conviction indictment, a as variance occurs. Allmendinger, a fatal 706 F.3d constructive beyond 330, 339 (4th amendment United 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 between the property indictment at and trial, the resulting evidence at in a trial. variance On the contrary, Samnang concedes that the Government produced no such 3 evidence in its case in chief. United States misplaced. v. Stigler, Moreover, Samnang s reliance on 413 F.3d 588 (7th Cir. 2005) is 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. defendant by Id. at increasing 592. the The variance number of prejudiced victims under the 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 conduct for the failure to raise appellate review. it lacks merit in loss including calculations this issue in this under his property as relevant the Guidelines, opening brief his waives Even were we to review this issue, however, as the district court correctly relevant conduct by a preponderance of the evidence. found the 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). 4 Accordingly, we affirm the judgment of the district court. legal We dispense with oral argument because the facts and contentions are adequately presented in the materials before this court and argument would not aid in the decisional process. AFFIRMED 5
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