US v. Christopher Mills, No. 13-4344 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4344 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER JAMES MILLS, a/k/a Christopher James Nichols, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, Chief District Judge. (7:12-cr-00013-GEC-1) Submitted: January 31, 2014 Before MOTZ and Circuit Judge. AGEE, Circuit Decided: Judges, and February 19, 2014 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for Appellant. Timothy J. Heaphy, United States Attorney, R. Andrew Bassford, Assistant United States Attorney, Roanoke, Virginia; Mythili Raman, Assistant United States Attorney, Denis J. McInerney, Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Christopher James Mills appeals his conviction and 254-month sentence for conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012). in On appeal, Mills raises several arguments: that the district court denied him a fair trial by denying his motion in limine and permitting evidence concerning a home invasion; that the district court abused its discretion in denying his motions for a mistrial and a new trial; that the evidence presented by the Government resulted in a constructive amendment to the indictment; that his sentence is procedurally unreasonable; and that the district statutory mandatory court minimum unconstitutionally sentence. Finding increased no his reversible error, we affirm. Mills first contends that the district court erred in denying his motion in limine and permitting the Government to present evidence pertaining to a home invasion, in violation of Fed. R. Evid. 403 and 404(b). the district court Even if we were to assume that erroneously admitted conclude that any such error was harmless. the evidence, we See United States v. Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008) (providing standard of review). 2 Second, Mills contends that the district court erred in denying his motions for a mistrial and for a new trial based on the Government s alleged prosecutorial misconduct. claims of prosecutorial misconduct to determine We review whether the conduct so infected the trial with unfairness as to make the resulting conviction a denial of due process. United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (internal quotation marks omitted). misconduct, the To prevail defendant on must a claim show that of the prosecutorial prosecutor s remarks or conduct were improper and . . . that such remarks or conduct prejudicially affected his substantial rights so as to deprive him of a fair trial. that the Government did not Id. Upon review, we conclude engage in any improper conduct. Thus, the district court did not abuse its discretion in denying Mills motions for a mistrial or for a new trial. See United States v. Robinson, 647 F.3d 941, 948 (4th Cir. 2010) (providing standard of review for denial of motion for new trial); United States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (providing standard of review for motion for mistrial). Third, Mills contends that his conviction should be overturned because the Government constructively amended the indictment by introducing evidence of a home invasion and drug activity involving drugs other than cocaine and dating back to 3 the 1990s. [A]fter an indictment has been returned[,] its charges may not be broadened through amendment except by the grand jury itself. 215-16 (1960). Stirone v. United States, 361 U.S. 212, When the government, through its presentation of evidence . . . 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.) (internal quotation marks and citation omitted), cert. denied, 133 S. Ct. 2747 (2013); see United States v. Foster, 507 F.3d 233, 242 (4th Cir. 2007) ( When considering a constructive amendment claim, it is the broadening of the bases for a defendant s conviction that is important - nothing brackets omitted). more. ) (internal quotation marks and Constructive amendments are fatal because the indictment is altered to change the elements of the offense charged, such that the defendant is actually convicted crime other than that charged in the indictment. of a Foster, 507 F.3d at 242 (internal quotation marks omitted). On review, we conclude that the Government s evidence did not amount to a constructive amendment to the indictment. See United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009) (providing standard of review). The brief mention of a home invasion did not create[] a substantial likelihood that [Mills] 4 was convicted of an uncharged offense. United States v. Johnson, 719 F.3d 660, 668 (8th Cir. 2013) (internal quotation marks omitted). Further, we conclude that evidence of transactions involving drugs other than powder cocaine did not constructively amend the indictment, considering the continuous nature of Mills drug transactions with his alleged coconspirators. See United States v. Dowdell, 595 F.3d 50, 68 (1st (stating Cir. 2010) that because § 841(a)(1) prohibits distribution of any controlled substance regardless of type, drug identity had no bearing on the substance of the charge ). Fourth, Mills contends that his sentence is procedurally unreasonable because the district court sentenced him to fourteen months more than the statutory mandatory minimum sentence. In reviewing a sentence, this court must first ensure that district the court did not commit any significant procedural error, such as failing to properly calculate the applicable Guidelines range, failing to consider the 18 U.S.C. § 3553(a) (2012) factors, or failing to adequately explain the sentence. district Gall v. United States, 552 U.S. 38, 51 (2007). court is not required § 3553(a) s every subsection. to robotically tick The through United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). However, the district court must place on the record an individualized assessment based 5 on the particular facts of the case before it. This individualized assessment need not be elaborate or lengthy, but it must provide a rationale tailored to the particular case at hand and United adequate States v. to permit Carter, meaningful 564 F.3d 325, appellate 330 (4th review. Cir. 2009) (quoting Gall, 552 U.S. at 50) (internal citation and footnote omitted)). committed On no discretion review, we procedural in conclude error imposing the that district thus, and, the did not within-Guidelines court abuse sentence. its See United States v. Lynn, 592 F.3d 572, 576, 578 (4th Cir. 2010) (providing standard of review). Finally, violated the Mills Fifth contends Amendment by that the district increasing his court statutory mandatory minimum sentence from ten years to twenty years based on his prior drug conviction, where that conviction was neither charged in essentially the indictment challenges the nor submitted viability of to a jury. Mills Almendarez-Torres v. United States, 523 U.S. 224 (1998), in light of the Supreme Court s recent decision in Alleyne v. United States, 133 S. Ct. 2151 (2013). Mills challenge fails, however, because we remain bound by Almendarez-Torres unless and until the Supreme Court says otherwise, which it has not. United States v. Graham, 711 F.3d 445, 455 (4th Cir. 2013); see also Alleyne, 133 S. Ct. at 6 2060 n.1 (2013); United States v. Cheek, 415 F.3d 349, 354 (4th Cir. 2005). Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 7

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