UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4337

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LEON S. WESTBERRY,

Defendant - Appellant.

No. 11-4338

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

LEON S. WESTBERRY,

Defendant - Appellant.

Appeals from the United States District Court for the District 

of South Carolina, at Florence and Columbia. R. Bryan Harwell, 

District Judge. (4:10-cr-00093-RBH-1; 3:02-cr-01150-RBH-1)

Submitted: June 29, 2012 Decided: August 1, 2012

Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
2

Affirmed by unpublished per curiam opinion.

James M. Griffin, LEWIS, BABCOCK & GRIFFIN, L.L.P., Columbia, 

South Carolina, for Appellant. William N. Nettles, United States 

Attorney, Jeffrey Mikell Johnson, Robert F. Daley, Jr., 

William E. Day, II, Assistant United States Attorneys, Columbia, 

South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

In 2003, Leon S. Westberry pleaded guilty to two 

counts of mail fraud, in violation of 18 U.S.C. § 1341 (2006). 

The district court sentenced Westberry to thirty-seven months of 

imprisonment, followed by three years of supervised release, and 

ordered Westberry to make restitution in the amount of 

$1,536,000. Subsequently, Westberry was convicted by the 

district court following a bench trial of thirty-six counts of 

knowingly and willfully making material false statements, in 

violation of 18 U.S.C.A. § 1001(a) (West 2006 & Supp. 2011). 

The district court also found that Westberry had violated the 

terms of his supervised release for the conduct underlying the 

new convictions and for other false statements made to 

Westberry’s probation officer. The court sentenced Westberry to 

sixty months of imprisonment for the counts of conviction, plus 

nine months of imprisonment for the supervised release 

revocation, to be served concurrently. 

Westberry now appeals and, with respect to the appeal 

of the revocation of supervised release, counsel has filed a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967), 

questioning whether the district court erred in revoking 

Westberry’s supervised release and unreasonably delayed holding 

a hearing on the supervised release revocation. Westberry was 

informed of his right to file a pro se supplemental brief but 
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has not done so. Finding no error, we affirm the judgment of 

the district court in all respects. 

Westberry first argues that his new criminal 

convictions must be reversed because his statements to his 

probation officer fall within the judicial function exception to 

the statute. As Westberry failed to raise this issue before the 

district court, we review for plain error. See Fed. R. Crim. P. 

52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993); see 

also United States v. Grace, 396 F. App’x 65 (5th Cir. 2010) 

(reviewing same issue for plain error). To meet this standard, 

Westberry must demonstrate that there was error, that was plain, 

and that affected his substantial rights. Olano, 507 U.S. at 

731-32. Moreover, even if Westberry demonstrates plain error 

occurred, we will not exercise our discretion to correct the 

error “unless the error seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.” Id.

(internal quotation marks and citation omitted).

Pursuant to 18 U.S.C.A. § 1001(a)(2), a defendant may 

not, in any matter within the jurisdiction of the judicial 

branch, make any materially false statement or representation. 

This section does not apply, however, “to a party to a judicial 

proceeding . . . for statements, representations, writings or 

documents submitted by such party . . . to a judge or magistrate 

in that proceeding.” 18 U.S.C. § 1001(b) (2006). This court 
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has not construed the judicial function exception in the context 

of statements made to a probation officer. Two circuits, 

however, have reached opposite conclusions on similar issues. 

Compare United States v. Hovarth, 492 F.3d 1075 (9th Cir. 2007)

(finding exception applied to statements to probation officer 

conducting presentence investigation); with United States v. 

Manning, 526 F.3d 611 (10th Cir. 2008) (exception did not apply 

to failure to include retirement account in financial statement 

to probation officer conducting presentence investigation). As 

there is no binding precedent in this Circuit, and as there is a 

conflict among other circuits regarding the applicability of the 

exception to this situation, any error by the district court was 

not clear and obvious. See United States v. Rhodes, 32 F.3d 

867, 871 (4th Cir. 1994) (for error to be plain it must be 

“clear or obvious”). Accordingly, regardless of the ultimate 

merit of Westberry’s argument, he cannot satisfy the high 

standard of plain error review.

Westberry next argues that his statements to his 

probation officer regarding his financial situation were not 

material because the probation officer could not alter the terms 

of the restitution order. Westberry also challenges the 

sufficiency of the evidence to demonstrate that he knowingly and 

willfully made the misrepresentations. “Our review of the 

district court’s finding of materiality is necessarily limited.” 
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United States v. Garcia-Ochoa, 607 F.3d 371, 376 (4th Cir. 

2010). “Materiality, as an element of a criminal offense, is a 

question of fact (or at the very least, a mixed question of law 

and fact) to be resolved by the fact finder, which in the case 

of a bench trial is the federal district judge.” Id. (citations 

omitted). Following a bench trial, we review a district court’s 

factual findings for clear error and review a challenge to the 

sufficiency of the evidence “in the light most favorable to the 

government in order to decide whether any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt.” Id. (internal quotation marks, alteration, 

and citations omitted). 

To be material, statements must “ha[ve] a natural 

tendency to influence, or [have been] capable of influencing, 

the decision of the decisionmaking body to which [they were] 

addressed.” Kungys v. United States, 485 U.S. 759, 770 (1988); 

see also Garcia-Ochoa, 607 F.3d at 375 (“The test of materiality 

is whether the false statement has a natural tendency to 

influence agency action or is capable of influencing agency 

action.”) (citations omitted). We have thoroughly reviewed the 

record and conclude that the district court did not err in 

finding Westberry guilty of the offenses, as there was 

substantial evidence to show that Westberry’s false statements 
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were material and that Westberry knowingly and willfully made 

the misrepresentations. 

Westberry also argues that the convictions for the 

first thirty-two counts of the indictment must be vacated 

because the court’s findings following the bench trial 

demonstrate that the court constructively amended the 

indictment. “A constructive amendment to an indictment occurs 

when either the government (usually during its presentation of 

evidence and/or its argument), the court (usually through its 

instructions to the jury), or both, broadens the possible bases 

for conviction beyond those presented by the grand jury.” 

United States v. Hackley, 662 F.3d 671, 682 n.6 (4th Cir. 2011) 

(internal quotation marks and citation omitted). Constructive 

amendments are “fatal variances because 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.” United States v. Perry, 560 F.3d 

246, 256 (4th Cir. 2009) (internal quotation marks and citations 

omitted). 

A constructive amendment is “error per se and is an 

independent ground for reversal on appeal even when not 

preserved by an objection.” United States v. Roe, 606 F.3d 180, 

189-90 (4th Cir. 2010) (citation omitted). After having 

carefully considered the record and the relevant legal 
8

authorities, we conclude that the district court did not 

constructively amend the indictment. 

With respect to the court’s revocation of Westberry’s 

supervised release, appellate counsel first questions whether 

the district court abused its discretion in finding that 

Westberry violated the terms of his supervised release. We 

review the district court’s revocation of supervised release for 

abuse of discretion. See United States v. Pregent, 190 F.3d 

279, 282 (4th Cir. 1999). The district court need only find a 

violation of a term of supervised release by a preponderance of 

the evidence. 18 U.S.C.A. § 3583(e)(3) (West Supp. 2008); see

United States v. Armstrong, 187 F.3d 392, 394 (4th Cir. 1999). 

Appellate courts review for clear error factual determinations 

underlying the conclusion that a violation occurred. United 

States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003). As 

discussed above, the district court did not err in finding that 

Westberry made materially false statements to his probation 

officer. We therefore conclude that the court did not err in 

finding, based in part on the finding of guilt of the new 

offenses, that Westberry violated the terms of his supervised 

release.

Finally, counsel questions whether the court 

unreasonably delayed holding a hearing on the probation 

officer’s petition for revocation of supervised release, filed 
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fifteen months prior to the revocation hearing. However, the 

district court held the revocation hearing at the same time in 

conjunction with the sentencing proceeding for Westberry’s new 

criminal convictions. As the facts supporting the petition for 

revocation of supervised release were intertwined with the facts

supporting the new criminal charges, the district court acted 

well within its discretion in holding the supervised release 

revocation hearing after the trial for the new charges was 

completed.

We have examined the entire record in accordance with 

the requirements of Anders with regard to the supervised release 

revocation and have found no meritorious issues for appeal. 

Accordingly, we affirm the judgment of the district court. This 

court requires that counsel inform Westberry, in writing, of the 

right to petition the Supreme Court of the United States for 

further review. If Westberry 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 Westberry. 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 in the 

decisional process. 

AFFIRMED