                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-5105



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


MATTHEW JOHNSON, a/k/a Michael Roy Johnson,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:04-cr-00065)


Submitted:   October 31, 2007          Decided:     December 10, 2007


Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Matthew G. Pruden, Sr., TIN FULTON GREENE & OWEN, PLLC, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            A jury convicted Matthew Johnson of possession with

intent to distribute more than five kilograms of cocaine (Count 1),

in violation of 21 U.S.C. § 841(a)(1) (2000); possession of a

firearm in furtherance of a drug trafficking crime (Count 2), in

violation    of   18   U.S.C.A.     §   924(c)(1)   (West    Supp.    2007);   and

possession of a firearm by an illegal alien (Count 3), in violation

of 18 U.S.C. § 922(g)(5) (2000).                On appeal, he challenges the

sufficiency of the evidence on Count 2 and asserts that the

district court erred by denying the motion to suppress evidence,

allowing the government to constructively amend the indictment, and

permitting the jury to hear he was an illegal alien.                   Finding no

reversible error, we affirm.

            Johnson first asserts that the district court erred by

denying his motion to suppress the six kilograms of cocaine and the

firearm found in secret compartments of the car he was driving when

he   was   stopped     for   a   traffic   violation   on    a    North   Carolina

interstate.       This court reviews the district court’s factual

findings underlying a motion to suppress for clear error, and the

district court’s legal determinations de novo.                   United States v.

Gray, 491 F.3d 138, 143-44 (4th Cir. 2007) (citing Ornelas v.

United States, 517 U.S. 690, 699 (1996)).                   When a suppression

motion has been denied, we review the evidence in the light most

favorable to the Government.            United States v. Uzenski, 434 F.3d


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690, 704 (4th Cir. 2006).          With these standards in mind, and having

reviewed the transcript of the suppression hearing and the parties’

briefs, we conclude that the district court did not err in denying

the motion to suppress.

            Next, Johnson asserts that the district court erred in

allowing the Government to amend the indictment before trial by

deleting   “base”    from    the    reference    to    “cocaine   base”      in   the

indictment.    Johnson correctly notes that “only the grand jury may

broaden or alter the charges in [an] indictment.” United States v.

Randall, 171 F.3d 195, 203 (4th Cir. 1999) (citing Stirone v.

United    States,    361    U.S.    212,    215-16    (1960)).    To   amend      an

indictment requires “resubmission to the grand jury, unless the

change is merely a matter of form.”            Russell v. United States, 369

U.S. 749, 770 (1962).          As the district court found, the case

against    Johnson   involved       six    kilograms   of   cocaine    and    never

involved any cocaine base.          Thus, the district court’s deletion of

the word “base” was merely a matter of form and did not “broaden[]

the possible bases for conviction beyond those presented by the

grand jury.”   United States v. Floresca, 38 F.3d 706, 710 (4th Cir.

1994) (en banc).      Thus, no Fifth Amendment violation occurred.

            Johnson also contends on appeal that the district court

erred in allowing the jury to hear that he was an illegal alien at

the time he was found in possession of the firearm.                His claim is

foreclosed by our decision in United States v. Milton, 52 F.3d 78,


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81 (4th Cir. 1995).        To the extent that Johnson alleges the

reference to his status as an illegal alien prejudiced him, the

district court questioned the jurors before they were impaneled and

determined that such status would not affect their ability to

render an impartial decision.       Thus, we conclude that Johnson is

not entitled to relief on this claim.

            Finally, Johnson challenges the district court’s denial

of his Fed. R. Crim. P. 29 motion for a judgment of acquittal,

asserting that the evidence was insufficient to convict him under

§ 924(c).    He contends that the government failed to prove that he

carried the firearm during and in relation to a drug trafficking

offense.    We review the district court’s decision to deny a Rule 29

motion de novo.     United States v. Smith, 451 F.3d 209, 216 (4th

Cir.), cert. denied, 127 S. Ct. 197 (2006).          Where, as here, the

motion was based on a claim of insufficient evidence, “[t]he

verdict of a jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.”     Glasser v. United States, 315 U.S. 60, 80 (1942);

Smith, 451 F.3d at 216.      This court “can reverse a conviction on

insufficiency    grounds   only   when   the   prosecution’s   failure   is

clear.”     United States v. Moye, 454 F.3d 390, 394 (4th Cir.)

(internal quotation marks and citation omitted), cert. denied, 127

S. Ct. 452 (2006).




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            Here, the district court explicitly instructed the jury

only on the possession prong of § 924(c), to which Johnson did not

object.   Despite Johnson’s failure to preserve this claim, we find

that the evidence was sufficient to convict.          See United States v.

Lomax, 293 F.3d 701, 705 (4th Cir. 2002) (stating that “statutory

term   ‘furtherance’   .   .   .   requires   the   government   to   present

evidence indicating that the possession of a firearm furthered,

advanced, or helped forward a drug trafficking crime”).

            Accordingly, we affirm the judgment of the district

court.    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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