United States v. Allen Alleyne

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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
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