US v. Albert Andrews, III, No. 13-4126 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4126 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ALBERT LEE ANDREWS, III, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. N. Carlton Tilley, Jr., Senior District Judge. (1:12-cr-00117-NCT-1) Submitted: November 19, 2013 Decided: November 27, 2013 Before MOTZ, DUNCAN, and KEENAN, Circuit Judges. Affirmed in part; vacated and remanded in part by unpublished per curiam opinion. Kearns Davis, Mary F. Peña, BROOKS, PIERCE, MCCLENDON, HUMPHREY & LEONARD, L.L.P., Greensboro, North Carolina, for Appellant. Ripley Rand, United States Attorney, Robert A. J. Lang, Assistant United States Attorney, Christopher Edwards, Third Year Law Student, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Albert Lee Andrews, III, appeals his convictions and 360-month sentence imposed after he was convicted by a jury of interference restaurant, carrying, relation with in commerce violation using, to a and crime § 924(c) (2012). by robbery of 18 U.S.C. brandishing of of violence, a Domino s § 1951 a firearm in violation Pizza (2012), during of and and 18 in U.S.C. On appeal, Andrews argues that the evidence presented and argued by the Government at trial resulted in a fatal variance convictions. that requires this was evidence should however, to vacate his He also contends that the district court erred in sentencing him as a career offender. there court no fatal variance between presented at trial, accordingly be affirmed. that Andrews The Government argues that and career the that indictment Andrews The sentence the convictions Government offender and is concedes, improper after this court s decision in United States v. Davis, 720 F.3d 215 (4th Cir. 2013), and therefore that his sentence should be vacated and the case remanded for resentencing. According established that to the Andrews, money taken evidence from presented the Domino s at trial business belonged to the franchise owner rather than to Domino s, and such evidence constituted a fatal variance from the indictment. This court reviews de novo a claim of constructive amendment to 2 an indictment. Cir. 2009). United States v. Malloy, 568 F.3d 166, 177 (4th When the government, through its presentation of evidence or its argument, or the district court, through its instructions to conviction the jury, beyond constructive or those amendment variance -- occurs. both, charged -- broadens in sometimes the the referred bases for indictment, to as a a fatal United States v. Allmendinger, 706 F.3d 330, 339 (4th Cir. 2013) (citation omitted), cert. denied, 133 S. Ct. 2747 (2013). An indictment is constructively amended, and a fatal variance occurs when the indictment is altered to change the defendant elements is of actually the convicted charged in the indictment. citation omitted). offense of charged, a crime such other that than the that Id. (internal quotation marks and Based on our review of the record, we conclude that no fatal variance occurred. Andrews argues, and the Government concedes, that his career offender because he charges that designation received were only a is no longer single consolidated by valid sentence the on state after the Davis, multiple court. The presentence investigation report noted Andrews convictions on five counts of felony robbery with a dangerous weapon, two counts of felony assault with a dangerous weapon with intent to kill, and one count occupied property. of felony discharge of a weapon into These charges were consolidated for judgment 3 and resolved at a single hearing, after which the state court issued a single imprisonment. sentence under judgment sentencing Andrews to a term of In Davis, this court held that a consolidated North Carolina law is a single purposes of the career offender enhancement. at 216; see also id. at 219-20. sentence for Davis, 720 F.3d Thus, after Davis, the state charges that were resolved by the consolidated judgment count as only one career-offender predicate. Andrews has no other prior felony convictions, and thus he does not qualify for sentencing as a career offender. Accordingly, we affirm Andrews convictions, his sentence, and remand for resentencing. oral argument adequately because presented in the the facts and materials vacate We dispense with legal contentions are before this and court argument would not aid the decisional process. AFFIRMED IN PART; VACATED AND REMANDED IN PART 4