UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4307

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONTE LAMAR WILLIAMS,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Abingdon. Glen M. Williams, Senior

District Judge. (1:06-cr-00042-gmw)

Submitted: April 9, 2008 Decided: May 2, 2008

Before NIEMEYER and SHEDD, Circuit Judges, and WILKINS, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appellant.

John L. Brownlee, United States Attorney, Jennifer R. Bockhorst,

Assistant United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
1

A constructive amendment of an indictment occurs when either

the Government or the court expands the “possible bases for

conviction beyond those presented by the grand jury.” United

States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994). While

Williams failed to raise any objection to the district court’s

instructions and does not address this matter on appeal,

constructive amendment of a federal indictment constitutes error

per se, and, under United States v. Olano, 507 U.S. 725 (1993),

must be corrected on appeal even when not preserved by objection.

See Floresca, 38 F.3d at 714.

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PER CURIAM:

Donte Lamar Williams appeals his convictions and 120-

month sentence for possession of a firearm during a drug

trafficking crime, in violation of 18 U.S.C.A. § 924(c) (West 2000

& Supp. 2007) (Count One), possession of a firearm while being a

user of a controlled substance, in violation of 18 U.S.C.

§ 922(g)(3) (2000) (Count Three), and possession with intent to

distribute five grams or more of cocaine base, in violation of 21

U.S.C.A. § 841(a)(1), (b)(1)(B) (West 1999 & Supp. 2007) (Count

Five). Williams’ counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), in which he asserts that there are

no meritorious issues for appeal, but asks this court to review

whether Williams was erroneously charged and convicted. Williams

was given an opportunity to file a pro se supplemental brief, but

has not done so. Upon review of this case, we asked the Government

to address whether the district court’s instructions to the jury

constituted a constructive amendment of Count One of the

indictment.1

 Upon consideration of the Government’s brief and the
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record in this case, we find no error and affirm Williams’

convictions and sentence.

Under Count One of the indictment, the Government was

required to prove Williams used or carried a firearm during and in

relation to a drug trafficking crime or possessed a firearm in

furtherance of a drug trafficking crime. See United States v.

Lipford, 203 F.3d 259, 265-66 (4th Cir. 2000). Proof of the

underlying crime is necessary to convict under § 924(c). United

States v. Hopkins, 310 F.3d 145, 153 (4th Cir. 2002). In this

case, the indictment identified the predicate drug trafficking

crime as “conspiring to distribute and possession with the intent

to distribute a substance containing cocaine base.” This language

bears some similarity to the conspiracy charge under Count Four of

the indictment, which charged Williams with conspiracy to

“distribute and possess with intent to distribute” five grams or

more of cocaine base, in violation of 21 U.S.C.A. §§ 841(b)(1)(B),

846 (West 1999 & Supp. 2007). However, at the close of the

Government’s evidence, the district court dismissed Count Four due

to insufficient evidence of a conspiracy. The district court

subsequently instructed the jury that to convict Williams of

violating § 924(c), the Government was required to prove that

Williams “possessed cocaine base with the intent to distribute,”

and that during and in relation to that crime, he used or carried
2

The Government is under no obligation to specify the

predicate offense for purposes of a § 924(c) charge; however, when

it chooses to do so, “it [is] not allowed through the presentation

of its evidence or its argument, and the district court [is] not

allowed through its jury instructions, to broaden the bases of

conviction to include [a] different § 924(c) predicate

offense . . . .” United States v. Randall, 171 F.3d 195, 210 (4th

Cir. 1999).

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a firearm. The district court further identified Count Five as a

drug trafficking crime for purposes of § 924(c).

If Count Four was the only offense specified as the

predicate drug trafficking crime for purposes of Count One, the

district court’s dismissal of that count and subsequent

identification of Count Five as the predicate crime would

constitute a fatal variance of the indictment. See United

States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991) (fatal

variance “change[s] the elements of the offense charged, such that

the defendant is actually convicted of a crime other than that

charged in the indictment.”).2 In the indictment, however, the use

of the term “possession” rather than “possess” indicates that Count

One charged two predicate crimes, both the conspiracy charge of

Count Four and the possession charge of Count Five. While the

phrasing employed in the indictment is not a model of clarity, it

was nonetheless sufficient to put Williams on notice that two

predicate offenses were being alleged in regard to the § 924(c)

charge. See United States v. Williams, 152 F.3d 294, 298 (4th Cir.

1998) (court liberally construes indictment if claim is raised for
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the first time on appeal). Therefore, because the § 924(c) charge

listed both Count Four and Count Five as predicate offenses, we

find that no fatal variance occurred.

In Williams’ Anders brief, counsel asks this court to

review whether Williams was erroneously charged or convicted, but

concedes that the indictment sufficiently appraised Williams of the

charges against him and that his conviction and sentence were

supported by the evidence. The record reveals that the indictment

alleged each material element of the offenses charged and fairly

informed Williams of the charges against him. See United States v.

Wicks, 187 F.3d 426, 427 (4th Cir. 1999). Furthermore, there was

sufficient evidence to uphold Williams’ convictions for possession

of a firearm during a drug trafficking crime, possession of a

firearm while being an unlawful user of controlled substances, and

possession with intent to distribute more than five grams of

cocaine. Finally, Williams raised no objections at sentencing and

received the minimum sentence required by statute. Therefore, we

conclude there was no error in regard to Williams’ convictions or

sentence.

In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm Williams’ convictions and sentence. This court

requires counsel inform his client, in writing, of his right to

petition the Supreme Court of the United States for further review.
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If the client 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 the

client. 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