UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-4575

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

NADIN SAMNANG,

 Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Gerald Bruce Lee, District 

Judge. (1:11-cr-00575-GBL-1)

Submitted: May 30, 2013 Decided: June 18, 2013

Before KING, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Shanlon Wu, WU, GROHOVSKY & WHIPPLE, PLLC, Washington, D.C., for 

Appellant. Neil H. MacBride, United States Attorney, Paul J. 

Nathanson, Assistant United States Attorney, Alexandria, 

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

A federal jury convicted Nadin Samnang of conspiracy 

to commit wire and mail fraud, in violation of 18 U.S.C.A. 

§ 1349 (West Supp. 2012); nine counts of wire fraud, in 

violation of 18 U.S.C.A. § 1343 (West Supp. 2012); and two 

counts of mail fraud, in violation of 18 U.S.C.A. § 1341 (West 

Supp. 2012). The district court sentenced Samnang to 

eighty-four months of imprisonment and he now appeals. Finding 

no error, we affirm.

Samnang first argues on appeal that the district court 

abused its discretion in denying his requests for a continuance 

of the trial based on counsel’s lack of preparation. We review 

the denial of a motion for a continuance for abuse of 

discretion. United States v. Cole, 631 F.3d 146, 156 (4th Cir. 

2011). “[E]ven if such an abuse is found, the defendant must 

show that the error specifically prejudiced [his] case in order 

to prevail.” United States v. Williams, 445 F.3d 724, 739 (4th 

Cir. 2006) (internal quotation marks and citation omitted). We 

have thoroughly reviewed the record and conclude that the 

district court did not abuse its discretion in denying Samnang’s 

additional continuance requests after the court, upon Samnang’s 

motion, had already granted a continuance of the trial date by 

more than one month.
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Samnang next argues that the court erred by including 

in the loss calculation under the Sentencing Guidelines the loss 

attributable to a property that was not listed in the 

indictment. Samnang argues that this created a fatal variance 

that prejudiced him because it resulted in increased penalties. 

“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—

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

States v. Allmendinger, 706 F.3d 330, 339 (4th Cir. 2013) 

(internal quotation marks and citation omitted), petition for 

cert. filed, (U.S. Apr. 23, 2013) (No. 12-1271). “[A] fatal 

variance occurs when the indictment is altered to change the 

elements of the offense charged, such that the defendant is 

actually convicted of a crime other than that charged in the 

indictment.” Id. (internal quotation marks and citation 

omitted). 

We have reviewed the record and the relevant legal 

authorities and conclude that there was no variance. Samnang 

does not allege that the Government produced evidence related to 

this uncharged property at trial, resulting in a variance 

between the indictment and the evidence at trial. On the 

contrary, Samnang concedes that the Government produced no such 
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evidence in its case in chief. Moreover, Samnang’s reliance on 

United States v. Stigler, 413 F.3d 588 (7th Cir. 2005) is 

misplaced. The Seventh Circuit in Stigler determined that a 

fatal variance occurred where the government presented evidence 

of more than one conspiracy where the indictment charged only 

one conspiracy. Id. at 592. The variance prejudiced the 

defendant by increasing the number of victims under the 

Guidelines, resulting in additional enhancement at sentencing. 

Id. at 593. Here, however, there was no constructive amendment 

to the indictment or fatal variance between the indictment and 

the evidence adduced at trial and therefore we need not reach 

the issue of prejudice.

Moreover, to the extent that Samnang argues that the 

district court erred in including this property as relevant 

conduct for the loss calculations under the Guidelines, his 

failure to raise this issue in his opening brief waives 

appellate review. Even were we to review this issue, however, 

it lacks merit as the district court correctly found the 

relevant conduct by a preponderance of the evidence. See U.S. 

Sentencing Guidelines Manual § 1B1.3(a) (definition of relevant 

conduct); see also United States v. Miller, 316 F.3d 495, 504 

(4th Cir. 2003) (the district court “need only make a reasonable 

estimate of the loss” by a preponderance of the evidence). 
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Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before this court and argument would not aid in the decisional 

process. 

AFFIRMED