UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4521

RICHARD RAY HUGHES,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4594

MANUEL CARRIZOZA,

Defendant-Appellant. 

Appeals from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CR-02-45)

Submitted: February 19, 2004

Decided: March 16, 2004

Before LUTTIG, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Gregory A. Newman, BLANCHARD, BOWEN, NEWMAN &

HAYES, Hendersonville, North Carolina; Sue Genrich Berry,
BOWEN, BERRY, POWERS AND SLAUGHTER, P.L.L.C., Wilmington, North Carolina, for Appellants. Robert J. Conrad, Jr., United

States Attorney, Thomas R. Ascik, Assistant United States Attorney,

Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Richard Ray Hughes and Manuel Carrizoza were convicted in separate trials for their involvement in a conspiracy to distribute at least

fifty grams of methamphetamine, in violation of 21 U.S.C. § 846

(2000). Hughes was sentenced to 192 months incarceration, 5 years

of supervised release, and a $100 special assessment. Carrizoza was

sentenced to 360 months incarceration, 10 years of supervised release,

and a $100 special assessment. Both timely appealed, and their

appeals have been consolidated. 

First, Hughes argues the evidence was insufficient to sustain his

conviction. This Court reviews a challenge to the sufficiency of the

evidence to determine whether, viewing the evidence in the light most

favorable to the Government, there is substantial evidence to support

the conviction. United States v. Glasser, 315 U.S. 60, 80 (1942). This

claim is meritless. Multiple witnesses testified regarding Hughes’

drug activity, and their credibility is not subject to appellate review.

See, e.g., United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir.

1997). 

Second, Hughes argues the district court erred by failing to grant

him a two point reduction in his offense level for being a minor participant in the conspiracy. We review the district court’s denial of a

minor role adjustment for clear error. United States v. Daughtrey, 874

F.2d 213, 218 (4th Cir. 1989). This claim is meritless. Hughes has not

2 UNITED STATES v. HUGHES
established he had a minor role in the conspiracy. U.S. Sentencing

Guidelines Manual § 3B1.2(b) (2002). 

Third, Carrizoza argues the district court erred, under Fed. R. Evid.

404(b), in admitting evidence from searches of his residences. We

review this claim for plain error because Carrizoza did not raise this

challenge in district court. Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 731-32 (1993). This claim is meritless. Federal

agents searched Carrizoza’s residences in the course of their investigation of his involvement with the instant conspiracy. The searches

thus revealed evidence directly related to the conspiracy for which

Carrizoza was indicted, not evidence of "prior bad acts" under Fed.

R. Evid. 404(b). 

Fourth, Carrizoza argues the district court’s jury instructions constituted a constructive amendment of the indictment. In reviewing this

claim, we note that a "constructive amendment violates the Fifth

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

when the defendant did not preserve the issue by objection." United

States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). This claim is

meritless. The jury instructions did not broaden the indictment’s basis

for Carrizoza’s conviction. Id.

Fifth, Carrizoza argues the district court erred at sentencing in

determining the drug quantity for which he was liable. We review a

sentencing court’s drug quantity determinations for clear error. United

States v. D’anjou, 16 F.3d 604, 614 (4th Cir. 1994). This claim is

meritless. The district court’s findings were based on the Presentence

Investigation Report, and Carrizoza does not show these findings are

inaccurate or unreliable. United States v. Randall, 171 F.3d 195, 221

(4th Cir. 2000). 

Accordingly, we affirm the convictions and sentences of Hughes

and Carrizoza. 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

UNITED STATES v. HUGHES 3