                   Certiorari granted, October 5, 2012
                 Vacated by Supreme Court, June 17, 2013



                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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