UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-5142

UNITED STATES OF AMERICA,

 Plaintiff – Appellee,

v.

KENNETH LANE PEGRAM,

 Defendant - Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. James A. Beaty, Jr., 

Chief District Judge. (1:08-cr-00100-JAB-1)

Submitted: August 30, 2012 Decided: September 14, 2012

Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James B. Craven, III, Durham, North Carolina, for Appellant. 

Ripley Rand, United States Attorney, Paul A. Weinman, Assistant 

United States Attorney, Winston-Salem, North Carolina, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kenneth Lane Pegram was charged in a superseding 

indictment with possession of firearms by a convicted felon, 18 

U.S.C. § 922(g)(1) (2006) (Count One); possession of ammunition 

by a convicted felon, 18 U.S.C. § 922(g)(1) (Count Two); 

possession with intent to distribute 55.87 grams of marijuana, 

21 U.S.C. § 841(a)(1), (b)(1) (2006) (Count Three); and failure 

to appear, 18 U.S.C. § 3146(a)(1) (2006) (Count Four). He pled 

guilty to Count Four, and a jury convicted him of the remaining 

three offenses. The district court subsequently dismissed Count 

Two. Pegram was sentenced to 120 months’ imprisonment on Count 

One, sixty months’ imprisonment, concurrent, on Count Three, and 

twelve months’ imprisonment, concurrent, on Count Four. 

Pegram now appeals. His attorney has filed a brief in 

accordance with Anders v. California, 386 U.S. 738 (1967), 

stating that there are no meritorious issues for appeal, but 

questioning whether trial counsel was ineffective, whether there 

was prosecutorial misconduct, and whether there was judicial 

bias at sentencing. Pegram has filed a pro se brief, as 

supplemented, raising numerous issues. We affirm.

I

Pegram does not challenge his conviction on Count 

Four, and our review of the record discloses no meritorious 
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issues for appeal with respect to that conviction. The 

transcript of the Fed. R. Crim. P. 11 hearing reveals that the 

district court substantially complied with Rule 11. Further, as 

the district court found, the plea was entered knowingly and 

voluntarily, and there was a factual basis for the plea. 

II

We find no merit to the issues raised in the Anders

brief. We will not address the claim of ineffective assistance 

of defense counsel because ineffectiveness does not conclusively 

appear on the face of the record. See United States v. 

Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Pegram’s 

contention that the prosecutor engaged in misconduct lacks 

merit: the brief cites no specific examples of misconduct, and 

our review of the record discloses none. Finally, the record 

does not demonstrate judicial bias at sentencing. 

III

In his pro se brief, Pegram raises a wide array of 

claims, none of which have merit. First, contrary to Pegram’s 

assertion, the district court properly denied his Fed. R. Crim. 

P. 29 motion for judgment of acquittal. Pegram’s primary 

argument is that the evidence was insufficient to establish that 

he possessed the truck inside which officers found four firearms 
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and a quantity of marijuana. The evidence—including the 

presence in the truck of an eviction notice addressed to Pegram, 

the testimony of Van Milton Cole and Archie Emory, and the tags 

on the truck—demonstrates Pegram’s constructive possession of 

the truck. 

The parties were directed to submit supplemental 

briefing regarding a stipulation concerning Pegram’s status as a 

convicted felon. The indictment identified two felonies that 

qualified under § 922(g)(1). Pegram, however, stipulated at 

trial as to only one felony, a 1998 conviction for possession of

marijuana in jail. The government conceded that, after United 

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), that

conviction does not qualify as a predicate felony. However, a 

1994 conviction identified in the indictment does so qualify. 

The 1994 conviction, however, was not stipulated to at trial.

After reviewing the supplemental briefs, we conclude 

that there was no reversible error. The indictment placed 

Pegram on notice that the Government might use either the 1994 

or the 1998 offense, or both, to establish his status. The fact 

that the crime to which Pegram ultimately stipulated was not a 

felony under Simmons does not, on plain error review, destroy 

the validity of the stipulation when the 1994 crime does so 

qualify. 
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With respect to Pegram’s remaining claims, our review 

of the record discloses either no error or no plain error that 

we will, in our discretion, recognize. We address only a few of 

those claims and do so very briefly. First, the court’s 

instructions to the jury did not constructively amend the 

indictment because time generally is not a material element of a 

criminal offense, United States v. Stuckey, 220 F.3d 976, 982 

(8th Cir. 2000), and Pegram was not, as he urges, tried on 

charges other than those made in the indictment. See United 

States v. Floresca, 38 F.3d 708, 711 (4th Cir. 1994). Second, 

taken as a whole, the circumstances surrounding Pegram’s initial 

questioning at a bar do not establish that he was in custody.

Accordingly, it was not necessary that the police administer 

warnings in accordance with Miranda v. Arizona, 384 U.S. 436 

(1966). Third, the removal of Pegram’s wife from the courtroom 

did not violate his right to a public trial, for there is 

absolutely no evidence that the courtroom did not remain open to 

the general public. Fourth, no hearing under Remmer v. United 

States, 347 U.S. 227 (1954), was required because the record 

establishes that the court assured itself that there had been no 

unauthorized communication between Pegram’s wife and any juror. 
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IV

In accordance with Anders, we have reviewed the entire 

record in this case and have found no meritorious issues for 

appeal. We therefore grant the motion to file a pro se 

supplemental brief, and we affirm Pegram’s convictions and 

sentence. This Court requires that counsel inform Pegram, in 

writing, of the right to petition the Supreme Court of the 

United States for further review. If Pegram requests that a 

petition be filed, but counsel believes that such a petition 

would be frivolous, then counsel may move in this Court for 

leave to withdraw from representation. Counsel’s motion must 

state that a copy thereof was served on Pegram. 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