UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4668

ROBERT EARL MARSHALL,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-99-37, CA-01-129-3)

Submitted: January 30, 2002

Decided: February 12, 2002

Before MOTZ and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

David W. Lease, SMITH, LEASE & GOLDSTEIN, L.L.C., Rockville, Maryland, for Appellant. Paul J. McNulty, United States Attorney, Stephen W. Miller, Assistant United States Attorney, Richmond,

Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Robert Earl Marshall appeals from his conviction and the sentence

imposed by the district court after a jury trial for possession of crack

cocaine in violation of 21 U.S.C.A. § 844 (West 1999), possession of

a firearm by a convicted felon in violation of 18 U.S.C.A. § 922(g)(1)

(West 2000), carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C.A. § 924(c) (West 2000), and

aiding and abetting, in violation of 18 U.S.C.A. § 2 (West 2000).

Finding no reversible error, we affirm. 

On appeal, Marshall contends the district court erred in sentencing

him to twenty-four months of imprisonment for possession of crack

under 21 U.S.C.A. § 844(a). Because Marshall failed to raise this

issue in the district court, this court’s review is for plain error. United

States v. Olano, 507 U.S. 725, 731-32 (1993). We find no error. 

Marshall next contends his indictment was fatally defective

because the language in the indictment charging him with possession

of a firearm during and in relation to a drug trafficking offense was

ambiguous. Because Marshall failed to raise this argument in the district court, review is for plain error. Olano, 507 U.S. at 731-32. We

find the indictment sufficiently contained the elements of the offense

charged and fairly informed Marshall of the charge against which he

was required to defend himself. Moreover, it sufficiently enables him

to plead a conviction in bar of future prosecutions for the same

offense. See United States v. Wicks, 187 F.3d 426, 427 (4th Cir. 1999)

(quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). Thus,

we find no error. 

Marshall next contends the district court erred in denying his Fed.

R. Crim. P. 29 motion for a judgment of acquittal due to insufficiency

of the evidence. Viewing the evidence in the light most favorable to

2 UNITED STATES v. MARSHALL
the Government, we find a reasonable trier of fact could have found

Marshall guilty beyond a reasonable doubt. See Glasser v. United

States, 315 U.S. 60, 80 (1942). 

Marshall next contends that allowing a prior conviction for a drug

offense to be determinative of whether his possession of crack in violation of 21 U.S.C.A. § 844(a) qualifies as a drug trafficking crime

under 18 U.S.C.A. § 924(c) is arbitrary and thus deprives him of the

due process of law guaranteed by the Fifth Amendment, or at least

that the rule of lenity should be invoked in construing § 844. We

review for plain error, and finding none, affirm. Olano, 507 U.S. at

731-32. 

Marshall next contends the district court constructively amended

the indictment by giving the jury erroneous instructions. Again,

because Marshall failed to raise this claim before the district court, we

review for plain error. A review of the record and the instructions in

question shows they did not broaden the possible bases for conviction

beyond those presented by the grand jury. See United States v.

Floresca, 38 F.3d 706, 710 (4th Cir. 1994). Thus, we find no error.

Finally, Marshall contends the district court lacked subject matter

jurisdiction over his case because 18 U.S.C.A. § 922(g)(1) is unconstitutional inasmuch as Congress exceeded its authority under the

Commerce Clause in enacting it. This court has explicitly upheld the

constitutionality of the statute. United States v. Gallimore, 247 F.3d

134, 137-38 (4th Cir. 2001); United States v. Wells, 98 F.3d 808, 811

(4th Cir. 1996); see also Chisolm v. TranSouth Fin. Corp., 95 F.3d

331, 337 n.7 (4th Cir. 1996) (noting the Court is bound by circuit precedent until it is either overruled en banc or superseded by a Supreme

Court decision). Thus, we find this claim to be without merit. 

Accordingly, we affirm Marshall’s conviction and sentence. 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

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