UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 11-4208

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

ALLEN RYAN ALLEYNE, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. Robert E. Payne, Senior 

District Judge. (3:10-cr-00134-REP-1) 

Submitted: November 30, 2011 Decided: December 15, 2011 

Before WILKINSON, KING, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire, 

Assistant Federal Public Defender, Patrick L. Bryant, Appellate 

Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride, 

United States Attorney, Michael R. Gill, Assistant United States 

Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 

Certiorari granted, October 5, 2012 

Vacated by Supreme Court, June 17, 2013
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PER CURIAM: 

Allen Ryan Alleyne appeals his conviction and 

resulting 130-month custodial sentence. A federal jury found 

Alleyne guilty of robbery affecting commerce in violation of 18 

U.S.C. §§ 1951(a), 2 (2006) and use or carry of a firearm during 

and in relation to a crime of violence in violation of 18 U.S.C. 

§§ 924(c), 2 (2006). We affirm the judgment. 

Alleyne first argues that the evidence was 

insufficient to support either of his convictions. We review 

the denial of a motion for a judgment of acquittal de novo. 

United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). A 

defendant challenging the sufficiency of the evidence faces a 

heavy burden. United States v. Beidler, 110 F.3d 1064, 1067 

(4th Cir. 1997). The verdict of a jury must be sustained “if, 

viewing the evidence in the light most favorable to the 

prosecution, the verdict is supported by ‘substantial 

evidence.’” Smith, 451 F.3d at 216. Substantial evidence is 

“evidence that a reasonable finder of fact could accept as 

adequate and sufficient to support a conclusion of a defendant’s 

guilt beyond a reasonable doubt.” Id. (internal quotation marks 

omitted). “Reversal for insufficient evidence is reserved for 

the rare case where the prosecution’s failure is clear.” 

Beidler, 110 F.3d at 1067 (internal quotation marks omitted). 
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Importantly, we “do not review the credibility of the 

witnesses and assume that the jury resolved all contradictions 

in the testimony in favor of the government.” United States v. 

Foster, 507 F.3d 233, 245 (4th Cir. 2007). We are mindful that 

“the jury, not the reviewing court, weighs the credibility of 

the evidence and resolves any conflicts in the evidence 

presented.” Beidler, 110 F.3d at 1067 (internal quotation marks 

and brackets omitted). 

Alleyne fails to persuade us that the evidence against 

him was insufficient to sustain his convictions. He claims that 

the only witness who connected him to the robbery was inherently 

incredible. We refuse to substitute our own credibility 

assessment for that of the jury. Moreover, independent evidence 

corroborated much of the witness’ testimony. Although no direct 

testimony established that he participated in the use of the 

firearm, such an inference was reasonable given Alleyne’s 

participation in the planning and execution of the robbery. 

Alleyne’s sufficiency of the evidence arguments lack merit. 

Alleyne contends that he was convicted under a theory 

of aiding and abetting liability despite an unambiguous charge 

in the indictment that he acted as the principal. He claims 

that the Government’s presentation of evidence and the court’s 

jury instructions on aiding and abetting liability 

constructively amended the indictment. 
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“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. Floresca, 38 F.3d 706, 710 (4th Cir. 1994). “A 

constructive amendment is a fatal variance 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. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (internal 

quotation marks omitted). A constructive amendment is error per 

se, and, given the Fifth Amendment right to be indicted by a 

grand jury, “must be corrected on appeal, even when not 

preserved by objection.” Floresca, 38 F.3d at 714. 

“Because the aiding and abetting provision [18 U.S.C. 

§ 2] does not set forth an essential element of the offense with 

which the defendant is charged or itself create a separate 

offense, aiding and abetting liability need not be charged in an 

indictment.” United States v. Ashley, 606 F.3d 135, 143 (4th 

Cir. 2010). A defendant “may be convicted of aiding and 

abetting under an indictment which charges only the principal 

offense.” United States v. Duke, 409 F.2d 669, 671 (4th Cir. 

1969). 
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We do not find that Alleyne’s indictment was 

constructively amended during trial. The indictment 

specifically charged violation of 18 U.S.C. § 2 (2006), thereby 

putting Alleyne on notice of the Government’s aiding and 

abetting theory. See United States v. Robinson, 956 F.2d 1388, 

1394-95 (7th Cir. 1992). He was not convicted of a crime other 

than that charged in the indictment. 

Nor do we find that the presentation of the aiding and 

abetting theory of liability constituted a prejudicial variance. 

No impermissible prejudice occurs if “the indictment provides 

the defendant with adequate notice of the charges against him 

and is sufficient to allow the defendant to plead it as a bar to 

subsequent prosecutions.” United States v. Redd, 161 F.3d 793, 

795-96 (4th Cir. 1998). Alleyne was indisputably on notice of 

the Government’s intention to pursue an aiding and abetting 

theory of liability before his trial. Alleyne has not alleged 

that the indictment is insufficient to bar re-prosecution 

against him. We do not find a prejudicial variance on these 

facts. 

Alleyne’s final appellate argument is that the 

district court erred by holding him responsible at sentencing 

for brandishing a firearm. The court’s finding elevated 

Alleyne’s mandatory minimum sentence for the firearm conviction 

from five years to seven years pursuant to 18 U.S.C. 924(c). We 
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review a district court’s factual findings at sentencing for 

clear error. United States v. Pauley, 289 F.3d 254, 258 (4th 

Cir. 2002). 

We first note, as Alleyne has conceded, that Supreme 

Court precedent forecloses any argument that Alleyne’s 

constitutional rights were violated by the district court’s 

finding that he was accountable for brandishing the firearm 

despite the jury’s finding that he was not guilty of that 

offense. Harris v. United States, 536 U.S. 545, 556 (2002). We 

do not find the district court’s finding otherwise clearly 

erroneous. 

Accordingly, we affirm the district court’s judgment. 

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