UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4082

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SHARU BEY, a/k/a Jeffrey Lewis,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:07-cr-00079-FDW-2)

Submitted: January 26, 2011 Decided: March 4, 2011

Before NIEMEYER, KING, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for 

Appellant. Anne M. Tompkins, United States Attorney, Charlotte, 

North Carolina; Amy E. Ray, Assistant United States Attorney, 

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Sharu Bey was convicted by a jury of conspiracy to 

possess with intent to distribute at least 100 kilograms of 

marijuana, 21 U.S.C. § 846 (2006) (Count One); possession with 

intent to distribute at least 100 kilograms of marijuana, and 

aiding or abetting, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2 (2006) 

(Count Two); and unlawful possession of a firearm by a convicted 

felon, 18 U.S.C. § 922(g)(1) (2006) (Count Four).*

 * Bey was tried jointly with co-defendants Ruben Barraza and 

Ruben Garcia on charges brought in a third superseding 

indictment. He was acquitted of using and carrying a firearm in 

furtherance of a drug trafficking crime, 18 U.S.C. § 924(c) 

(2006) (Count Three).

 Bey appeals 

his conviction and sentence, alleging that (1) the district 

court erred in entering judgment based on a defective verdict 

form that constructively amended the indictment; (2) the court 

clearly erred in determining the statutory sentencing range 

because the jury’s finding on drug amounts did not comply with 

Apprendi v. New Jersey, 530 U.S. 466 (2000); and (3) his 

sentence was improperly enhanced based on acquitted conduct and

enhancements that amounted to impermissible double counting. 

Bey also seeks leave to file two pro se supplemental briefs 

arguing these issues and raising new issues. We grant leave to 

file the supplemental briefs. However, we find no merit in any 
3

of the issues Bey raises, and affirm the conviction and 

sentence.

Bey was arrested on March 22, 2007, after he received 

fifty pounds of marijuana from co-defendant Juan Carlos SanchezSolorzano in Charlotte, North Carolina, two blocks from a 

warehouse where Sanchez-Solorzano and co-defendant Patrick 

Schwenke had unloaded a 2100-pound delivery of marijuana from 

Texas earlier the same day. In an interview immediately 

following his arrest, Bey said that he, not his passenger, was 

responsible for the gun that was seized from Bey’s car. 

At Bey’s trial, Sanchez-Solorzano testified that, 

beginning in 2003, Bey bought marijuana regularly from Schwenke 

at least twenty times, in quantities ranging from fifteen to 

seventy-five pounds, most often in fifty-pound quantities. 

Sanchez-Solorzano said that, in 2004, Bey received between 150 

and 350 pounds per month. Bey’s wife, Myra Lewis, testified 

that she owned the gun seized from Bey’s car and had put it in 

the car. However, she testified that she had not placed a 

bullet in the chamber of the firearm, although agents found a 

bullet there when the gun was seized. 

At the close of the trial, the district court 

instructed the jurors that if they found Bey guilty of Count 

One, the conspiracy charge, they would then be asked to 

determine the quantity of marijuana involved in the overall 
4

conspiracy. The court instructed the jury that “all members of 

a conspiracy are responsible for acts committed by the other 

members as long as those acts are committed to help advance the 

conspiracy, and are within the reasonably foreseeable scope of 

the agreement.” 

The verdict forms provided to the jurors gave them the 

option of finding Bey guilty of a conspiracy involving 

“distribution of” 1000 kilograms of marijuana, 100 kilograms of 

marijuana, or less than 100 kilograms of marijuana. For Count 

Two, which charged possession with intent to distribute 

marijuana, the jury had the option of finding that Bey 

“possessed or aided and abetted the possession of” 100 kilograms 

or less than 100 kilograms of marijuana with intent to 

distribute. The jury convicted Bey of participating in a 

conspiracy involving at least 100 kilograms of marijuana, 

possession with intent to distribute at least 100 kilograms of 

marijuana, and unlawful possession of a firearm by a convicted 

felon. 

At sentencing, Bey argued first that that “the default 

penalty provision in § 841” (in his case, a ten-year maximum) 

should apply because, for both Counts One and Two, the question 

posed to the jury on the verdict form concerning the amount of 

marijuana did not track the wording in the indictment or the 

jury instructions. Therefore, he argued, the jury’s finding did 
5

not comply with Apprendi v. New Jersey, 530 U.S. 466, 490 

(2000), which requires that “any fact that increases the penalty 

for a crime beyond the prescribed statutory maximum must be 

submitted to a jury, and proved beyond a reasonable doubt.” The 

district court rejected Bey’s argument, found him responsible, 

for sentencing purposes, for over 3000 kilograms of marijuana, 

and found that he had possessed the gun in connection with drug 

trafficking. The resulting guideline calculation produced an 

advisory guideline range of 202-365 months. The court imposed 

concurrent sentences of 324 months for Counts One and Two, and a 

concurrent ten-year sentence for Count Four, the firearm 

offense.

On appeal, Bey first contends that use of the terms 

“distribution” and “possession” relating to Counts One and Two 

on the verdict form amounted to a constructive amendment of the 

indictment. “The Fifth Amendment . . . guarantees that a 

criminal defendant will be tried only on charges in a grand jury 

indictment . . . [and] . . . only the grand jury may broaden or 

alter the charges in the indictment.” United States v. Randall, 

171 F.3d 195, 203 (4th Cir. 1999) (internal quotations omitted). 

“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 –
6

sometimes referred to as a fatal variance – occurs.” United 

States v. Malloy, 568 F.3d 166, 178 (4th Cir. 2009). A fatal 

variance is per se error, and must be corrected on appeal even 

if the appellant has not preserved it by objection. Randall, 

171 F.3d at 203 (citing United States v. Floresca, 38 F.3d 706, 

712-13 (4th Cir. 1994) (en banc)). Any variance which does not 

“change the elements of the offense charged, such that the 

defendant is actually convicted of a crime other than that 

charged in the indictment,” is not a fatal variance because it 

“does not violate a defendant’s constitutional rights . . . 

either by surprising him at trial and hindering the preparation 

of his defense, or by exposing him to the danger of a second 

prosecution for the same offense.” Malloy, 568 F.3d at 178. 

Bey did not raise this issue in a timely manner below. 

Objections to jury instructions must be made before the jury 

begins deliberations to be preserved for appeal. Fed. R. Crim. 

P. 30(d); United States v. Robinson, ___ F.3d ___, 2010 WL 

4869770, at *10 (4th Cir. Dec. 1, 2010); United States v. 

Cardinas Garcia, 596 F.3d 799, 798 (10th Cir.), cert. denied, 

130 S. Ct. 3299 (2010). Therefore, this Court’s review of the 

issue is for plain error. Garcia, 596 F.3d at 798. 

“When reviewing a jury verdict form,” [the appeals 

court] must determine whether it, along with the instructions 

read to the jury, as a whole adequately stated the applicable 
7

law.” Id. at 799. Generally, a minor error will not be enough 

to confuse a jury when the instructions as a whole state the law 

clearly. Id. at 800; but see United States v. Mouling, 557 F.3d 

658, 665 (D.C. Cir.) (Apprendi error in jury instructions cannot 

be cured by including drug quantity on verdict form), cert. 

denied, 130 S. Ct. 795 (2009).

Because of the divergence between the offenses charged 

in Counts One and Two and the verdict form’s wording of the 

questions addressing the quantity of marijuana involved in each 

count, Bey argues that the questions addressed two offenses 

different from the charged offenses and the district court 

committed reversible error in entering judgment on the jury’s 

verdict. Bey concedes that the district court properly 

instructed the jury on the charged offenses and that the parties 

argued the law correctly to the jury. However, with respect to 

Count One, he contends that the verdict form “was, at best, 

confusing and, at worst, constituted a fatal variance[.]” With 

respect to Count Two, Bey argues that the verdict form created a 

fatal variance by “unlawfully broaden[ing] the deliberations 

such that [he] could have been convicted for an offense for 

which he was not indicted.” 

The record discloses that the jurors convicted Bey of 

the offenses charged in Counts One and Two after they were 

properly instructed by the court about the elements of 
8

conspiracy and possession with intent to distribute, and the 

government presented evidence that supported each charge. The 

wording in the verdict form questions directed jurors to the 

amount of marijuana involved in each offense and did not create 

a fatal variance. The jurors addressed those questions only 

after they decided Bey’s guilt. Thus, Bey has not shown error, 

much less plain error. 

Bey next contends that the jury’s finding as to the 

quantity of marijuana involved in Counts One and Two did not 

comply with Apprendi. Under Apprendi, “[o]ther than the fact of 

a prior conviction, any fact that increases the penalty for the 

crime beyond the prescribed statutory maximum must be submitted 

to the jury and proved beyond a reasonable doubt.” Apprendi, 

530 U.S. at 490. Thus the government must prove, and the jury 

must find, drug quantities that trigger the higher statutory 

maximum sentences set out in § 841(b)(1)(A) and (B). Because 

Bey raised this legal issue at sentencing, review is de novo. 

United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).

Bey first claims that it was error under Apprendi for 

the jury to find, on the conspiracy count, that Bey was involved 

with 100 kilograms of marijuana because it did not match the 

1000 kilograms charged in Count One. The jurors were instructed 

to find the amount of marijuana involved in the conspiracy as a 

whole and the amount attributable to Bey personally. They did 
9

both. No Apprendi error is discernible in this regard. See

Collins, 415 F.3d at 312 (jury must determine the quantity of 

drugs attributable to the defendant individually, not just the 

quantity involved in the entire conspiracy).

Bey also argues that, because the indictment charged a 

conspiracy to possess with intent to distribute in Count One and 

possession with intent to distribute in Count Two, the jury’s 

determination as to the “distribution” and “possession” of a 

quantity of marijuana in connection with Count One and Count 

Two, respectively, was not a determination related to the 

offenses charged in the indictment. Therefore, he argues, the 

jury made no determination of marijuana quantity for Counts One 

and Two, and the district court should have applied the default 

provision in § 841(b), that is, subsection (b)(1)(D), which 

applies when the offense involves less than fifty kilograms of 

marijuana and provides a statutory maximum (with a prior drug 

conviction) of ten years. 

We conclude that the jury was correctly instructed 

about the elements of the charged offenses and that the 

imprecise language on the verdict form was not so confusing or 

misleading as to call the jury’s finding into question. The 

verdict form gave the jury the option of finding, for each 

offense, that Bey was involved with less than 100 kilograms of 

marijuana, an option that was added at the request of Bey’s 
10

attorney. The jury instead found that Bey was involved with at 

least 100 kilograms for each count. Thus, the jury made the 

required finding in compliance with Apprendi. 

Bey challenges the two-level sentencing enhancement he 

received under USSG § 2D1.1(b)(1) for possession of a firearm 

during the offense. The increase is authorized if the defendant 

possessed a dangerous weapon during the offense. Application 

Note 3 to § 2D1.1 explains that the enhancement “should be 

applied if the weapon was present, unless it is clearly 

improbable that the weapon was connected with the offense.” The 

district court’s factual finding that Bey possessed a dangerous 

weapon during the offense is reviewed for clear error. United 

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). The 

government “need only show that the weapon was present during 

the relevant illegal drug activity.” Id. 

Bey maintains that there was no evidence that he 

constructively possessed the gun seized from his car in light of 

his acquittal on the § 924(c) charge and his wife’s testimony 

that she purchased the gun and inadvertently left it in the car. 

However, immediately following his arrest, Bey told the agents 

he was responsible for the gun’s presence in his car. Bey’s 

wife, Myra Lewis, testified at trial that she had not placed a 

bullet in the chamber. The case agent testified that, along 

with the gun, two magazines of hollow-point bullets were seized, 
11

and that the gun had a bullet in the chamber. Therefore, in 

making its finding, the district court could infer that Bey had 

placed the bullet in the gun. The district court did not 

clearly err when it decided that Bey possessed the firearm 

during the drug offense. 

Last, Bey argues that the court erred when it made a 

two-level enhancement under § 2D1.1(b)(1) for possession of a 

firearm and a four-level enhancement for using or possessing a 

firearm in connection with another felony offense under 

§ 2K2.1(b)(6), with both enhancements being based on the same 

gun. Bey contends that the enhancement under § 2K2.1(b)(6) was 

unreasonable and was reversible error in light of his acquittal 

on the § 924(c) charge. 

The district court correctly adopted the probation 

officer’s calculation of Bey’s offense level, which started with 

separate offense level calculations for Counts One and Two 

(grouped together in one group under USSG § 3D1.2(c)) and Count 

Four (placed in a separate group). See USSG § 3D1.1(a)(2) 

(Procedure for Determining Offense Level on Multiple Counts). A 

firearm enhancement was correctly made in the calculation for 

both Counts One/Two and Count Four. The combined offense level 

was then determined as directed in § 3D1.1(a)(3). No double 

counting error occurred. 
12

We therefore affirm the sentence imposed by the 

district court. We grant Bey’s motions to file two separate pro 

se supplemental briefs and have considered the additional issues 

raised there, but find no merit in them. 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