UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4187

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GREGORY ALFRED WHYTE,

Defendant - Appellant.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:10-cr-00212-RDB-1)

Submitted: November 4, 2011 Decided: January 3, 2012

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Erek L. Barron, BARRON & ASSOCIATES, LLC, Largo, Maryland, for 

Appellant. Rod J. Rosenstein, United States Attorney, John F. 

Purcell, Jr., Sujit Raman, Assistant United States Attorneys, 

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

After a jury trial, Gregory Alfred Whyte was convicted 

of one count of conspiracy to possess with intent to distribute 

cocaine, in violation of 21 U.S.C. § 846 (2006), and one count 

of attempted possession with intent to distribute cocaine and 

aiding and abetting such conduct, in violation of 18 U.S.C. § 2 

(2006) and 21 U.S.C. § 846. Whyte makes several challenges to 

his convictions. Finding no error, we affirm. 

Whyte claims that the charges in his indictment were 

improperly joined. He contends he was charged with one drug 

conspiracy and two unrelated possession charges. Although 

Whyte’s motion for severance was denied, the Government 

eventually dropped one of the possession charges and proceeded 

to trial on the remaining two charges.

Fed. R. Crim. P. 8(a) provides that two or more 

offenses may be charged in the same indictment when the offenses 

“are of the same or similar character, or are based on the same 

act or transaction, or are connected with or constitute parts of 

a common scheme or plan.” This court reviews de novo the 

district court’s refusal to grant a misjoinder motion to 

determine whether the initial joinder of the offenses was proper 

under Rule 8(a). United States v. Mackins, 315 F.3d 399, 412 

(4th Cir. 2003). If joinder was proper, review of the denial of 

a motion to sever is for abuse of discretion under Fed. R. Crim. 
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P. 14. Id. If joinder was improper, the court “review[s] this 

nonconstitutional error for harmlessness, and reverse[s] unless

the misjoinder resulted in no ‘actual prejudice’ to the 

defendants ‘because it had [no] substantial and injurious effect 

or influence in determining the jury’s verdict.’” Id. (quoting 

United States v. Lane, 474 U.S. 438, 449 (1986).

Because of the prospect of duplicating witness 

testimony, impaneling additional jurors or wasting limited 

judicial resources, joinder is the rule rather than the 

exception. United States v. Hawkins, 589 F.3d 694, 700 (4th 

Cir. 2009). Joinder of multiple charges involving the same 

statute is “unremarkable”. Id. at 702-03 (citing United 

States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995) (courts 

routinely allow joinder of bank robbery charges against the same 

defendant)). 

We fail to see any error in the district court’s

decision denying the motion to sever. We note that even if 

there was error in the joinder, Whyte has failed to show actual 

prejudice. A review of the record shows that the jury only 

heard evidence pertaining to the one possession charge, and no 

evidence relating to the dismissed charge was admitted. 

Whyte also argues that by virtue of the Government’s 

decision to sever one of the charges, there was a constructive 

amendment of the indictment that became a fatal variance. “A 
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constructive amendment to an indictment occurs when . . . 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.

We conclude this claim is without merit. The 

Government did not present evidence that broadened the possible 

bases for a conviction. Neither is there any indication that 

the indictment was altered so as to change the elements of the 

charged offenses or that Whyte was convicted of anything other 

than the two charges.

Whyte also claims he received ineffective assistance 

of trial counsel because counsel failed to present the testimony 

of two impeachment witnesses. In order to succeed on a claim of 
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ineffective assistance of counsel, Whyte must show: (1) that 

his counsel’s performance fell below an objective standard of 

reasonableness; and (2) that counsel’s deficient performance was 

prejudicial. Strickland v. Washington, 466 U.S. 668, 687 

(1984). Ineffective assistance of counsel claims are not 

cognizable on direct appeal, unless the record conclusively 

establishes ineffective assistance. United States v. James, 337 

F.3d 387, 391 (4th Cir. 2003); United States v. Richardson, 195 

F.3d 192, 198 (4th Cir. 1999). Rather, to allow for adequate 

development of the record, claims of ineffective assistance 

generally should be brought in a 28 U.S.C.A. § 2255 (West Supp. 

2011) motion. United States v. Gastiaburo, 16 F.3d 582, 590 

(4th Cir. 1994). We conclude that Whyte’s ineffective 

assistance of counsel claim is not conclusively established by 

the record, and we will forego reviewing the claim. 

Finally, Whyte argues that the district court abused 

its discretion by denying his motion to continue the hearing on 

his motions seeking a new trial. The court’s decision not to 

grant a continuance and to have the scheduled hearing on Whyte’s 

motions for a new trial is reviewed for abuse of discretion. 

United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995). 

We see no abuse of discretion. Whyte has failed to 

show that he was prejudiced as a result of the district court’s 

decision. 
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Accordingly, we affirm the convictions and sentence. 

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