                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4082


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

SHARU BEY, a/k/a Jeffrey Lewis,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00079-FDW-2)


Submitted:   January 26, 2011             Decided:   March 4, 2011


Before NIEMEYER, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Steven T. Meier, MEIER LAW, Charlotte, North Carolina, for
Appellant. Anne M. Tompkins, 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Unpublished opinions are not binding precedent in this circuit.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:

            Sharu Bey was convicted by a jury of conspiracy to

possess    with    intent    to   distribute       at   least    100   kilograms    of

marijuana, 21 U.S.C. § 846 (2006) (Count One); possession with

intent to distribute at least 100 kilograms of marijuana, and

aiding or abetting, 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2 (2006)

(Count Two); and unlawful possession of a firearm by a convicted

felon, 18 U.S.C. § 922(g)(1) (2006) (Count Four). *                     Bey appeals

his   conviction     and    sentence,      alleging       that   (1)   the    district

court erred in entering judgment based on a defective verdict

form that constructively amended the indictment; (2) the court

clearly    erred    in     determining     the    statutory      sentencing     range

because the jury’s finding on drug amounts did not comply with

Apprendi    v.    New    Jersey,   530     U.S.     466    (2000);     and    (3)   his

sentence was improperly enhanced based on acquitted conduct and

enhancements      that     amounted   to       impermissible     double      counting.

Bey also seeks leave to file two pro se supplemental briefs

arguing these issues and raising new issues.                     We grant leave to

file the supplemental briefs.              However, we find no merit in any



      *
       Bey was tried jointly with co-defendants Ruben Barraza and
Ruben Garcia on charges brought in a third superseding
indictment. He was acquitted of using and carrying a firearm in
furtherance of a drug trafficking crime, 18 U.S.C. § 924(c)
(2006) (Count Three).



                                           2
of     the     issues       Bey    raises,       and     affirm      the     conviction        and

sentence.

               Bey was arrested on March 22, 2007, after he received

fifty pounds of marijuana from co-defendant Juan Carlos Sanchez-

Solorzano       in    Charlotte,          North       Carolina,      two     blocks     from     a

warehouse        where       Sanchez-Solorzano              and     co-defendant        Patrick

Schwenke had unloaded a 2100-pound delivery of marijuana from

Texas    earlier        the       same    day.         In     an   interview         immediately

following his arrest, Bey said that he, not his passenger, was

responsible for the gun that was seized from Bey’s car.

               At     Bey’s       trial,       Sanchez-Solorzano           testified      that,

beginning in 2003, Bey bought marijuana regularly from Schwenke

at least twenty times, in quantities ranging from fifteen to

seventy-five          pounds,       most       often     in    fifty-pound           quantities.

Sanchez-Solorzano said that, in 2004, Bey received between 150

and 350 pounds per month.                       Bey’s wife, Myra Lewis, testified

that she owned the gun seized from Bey’s car and had put it in

the car.         However, she testified that she had not placed a

bullet in the chamber of the firearm, although agents found a

bullet there when the gun was seized.

               At     the     close       of    the     trial,      the      district     court

instructed the jurors that if they found Bey guilty of Count

One,     the     conspiracy         charge,       they      would     then      be    asked     to

determine       the     quantity         of    marijuana      involved     in    the     overall

                                                  3
conspiracy.          The court instructed the jury that “all members of

a conspiracy are responsible for acts committed by the other

members as long as those acts are committed to help advance the

conspiracy, and are within the reasonably foreseeable scope of

the agreement.”

               The verdict forms provided to the jurors gave them the

option        of     finding       Bey    guilty           of     a        conspiracy    involving

“distribution of” 1000 kilograms of marijuana, 100 kilograms of

marijuana, or less than 100 kilograms of marijuana.                                     For Count

Two,     which        charged       possession             with       intent     to     distribute

marijuana,          the     jury    had     the       option          of     finding    that     Bey

“possessed or aided and abetted the possession of” 100 kilograms

or     less        than    100     kilograms          of    marijuana          with     intent      to

distribute.               The   jury     convicted         Bey        of    participating      in    a

conspiracy          involving       at    least        100        kilograms       of    marijuana,

possession with intent to distribute at least 100 kilograms of

marijuana, and unlawful possession of a firearm by a convicted

felon.

               At sentencing, Bey argued first that that “the default

penalty provision in § 841” (in his case, a ten-year maximum)

should apply because, for both Counts One and Two, the question

posed to the jury on the verdict form concerning the amount of

marijuana did not track the wording in the indictment or the

jury instructions.               Therefore, he argued, the jury’s finding did

                                                  4
not   comply      with    Apprendi     v.    New    Jersey,      530    U.S.     466,    490

(2000), which requires that “any fact that increases the penalty

for   a   crime     beyond    the    prescribed         statutory      maximum    must    be

submitted to a jury, and proved beyond a reasonable doubt.”                              The

district court rejected Bey’s argument, found him responsible,

for sentencing purposes, for over 3000 kilograms of marijuana,

and found that he had possessed the gun in connection with drug

trafficking.         The resulting guideline calculation produced an

advisory guideline range of 202-365 months.                         The court imposed

concurrent sentences of 324 months for Counts One and Two, and a

concurrent      ten-year          sentence    for       Count    Four,     the    firearm

offense.

              On appeal, Bey first contends that use of the terms

“distribution” and “possession” relating to Counts One and Two

on the verdict form amounted to a constructive amendment of the

indictment.          “The    Fifth     Amendment         . . .    guarantees      that     a

criminal defendant will be tried only on charges in a grand jury

indictment . . . [and] . . . only the grand jury may broaden or

alter the charges in the indictment.”                    United States v. Randall,

171 F.3d 195, 203 (4th Cir. 1999) (internal quotations omitted).

“When the government, through its presentation of evidence or

its argument, or the district court, through its instructions to

the   jury,    or   both,     broadens       the    bases   for     conviction     beyond

those     charged    in     the    indictment,      a    constructive      amendment       –

                                             5
sometimes referred to as a fatal variance – occurs.”                                 United

States v. Malloy, 568 F.3d 166, 178 (4th Cir. 2009).                                A fatal

variance is per se error, and must be corrected on appeal even

if the appellant has not preserved it by objection.                                Randall,

171 F.3d at 203 (citing United States v. Floresca, 38 F.3d 706,

712-13 (4th Cir. 1994) (en banc)).                      Any variance which does not

“change    the     elements      of   the    offense         charged,      such    that    the

defendant     is    actually      convicted        of    a    crime    other      than    that

charged in the indictment,” is not a fatal variance because it

“does   not    violate      a    defendant’s        constitutional          rights       . . .

either by surprising him at trial and hindering the preparation

of his defense, or by exposing him to the danger of a second

prosecution for the same offense.”                 Malloy, 568 F.3d at 178.

              Bey did not raise this issue in a timely manner below.

Objections to jury instructions must be made before the jury

begins deliberations to be preserved for appeal.                            Fed. R. Crim.

P.   30(d);    United      States     v.    Robinson,        ___    F.3d    ___,    2010    WL

4869770,      at   *10    (4th   Cir.      Dec.    1,     2010);      United      States   v.

Cardinas Garcia, 596 F.3d 799, 798 (10th Cir.), cert. denied,

130 S. Ct. 3299 (2010).               Therefore, this Court’s review of the

issue is for plain error.             Garcia, 596 F.3d at 798.

              “When      reviewing    a     jury   verdict         form,”   [the    appeals

court] must determine whether it, along with the instructions

read to the jury, as a whole adequately stated the applicable

                                             6
law.”    Id. at 799.           Generally, a minor error will not be enough

to confuse a jury when the instructions as a whole state the law

clearly.      Id. at 800; but see United States v. Mouling, 557 F.3d

658, 665 (D.C. Cir.) (Apprendi error in jury instructions cannot

be    cured   by    including         drug    quantity     on     verdict     form),       cert.

denied, 130 S. Ct. 795 (2009).

              Because of the divergence between the offenses charged

in Counts One and Two and the verdict form’s wording of the

questions addressing the quantity of marijuana involved in each

count,    Bey      argues      that    the    questions      addressed        two    offenses

different       from     the    charged       offenses      and    the    district         court

committed reversible error in entering judgment on the jury’s

verdict.           Bey    concedes       that       the    district       court      properly

instructed the jury on the charged offenses and that the parties

argued the law correctly to the jury.                       However, with respect to

Count One, he contends that the verdict form “was, at best,

confusing and, at worst, constituted a fatal variance[.]”                                  With

respect to Count Two, Bey argues that the verdict form created a

fatal    variance        by    “unlawfully          broaden[ing]        the   deliberations

such that [he] could have been convicted for an offense for

which he was not indicted.”

              The record discloses that the jurors convicted Bey of

the    offenses     charged      in     Counts       One   and    Two    after      they    were

properly      instructed         by     the     court      about        the   elements       of

                                                7
conspiracy and possession with intent to distribute, and the

government presented evidence that supported each charge.        The

wording in the verdict form questions directed jurors to the

amount of marijuana involved in each offense and did not create

a fatal variance.       The jurors addressed those questions only

after they decided Bey’s guilt.       Thus, Bey has not shown error,

much less plain error.

          Bey next contends that the jury’s finding as to the

quantity of marijuana involved in Counts One and Two did not

comply with Apprendi.     Under Apprendi, “[o]ther than the fact of

a prior conviction, any fact that increases the penalty for the

crime beyond the prescribed statutory maximum must be submitted

to the jury and proved beyond a reasonable doubt.”         Apprendi,

530 U.S. at 490.    Thus the government must prove, and the jury

must find, drug quantities that trigger the higher statutory

maximum sentences set out in § 841(b)(1)(A) and (B).         Because

Bey raised this legal issue at sentencing, review is de novo.

United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).

          Bey first claims that it was error under Apprendi for

the jury to find, on the conspiracy count, that Bey was involved

with 100 kilograms of marijuana because it did not match the

1000 kilograms charged in Count One.      The jurors were instructed

to find the amount of marijuana involved in the conspiracy as a

whole and the amount attributable to Bey personally.       They did

                                  8
both.     No Apprendi error is discernible in this regard.                                See

Collins, 415 F.3d at 312 (jury must determine the quantity of

drugs attributable to the defendant individually, not just the

quantity involved in the entire conspiracy).

            Bey also argues that, because the indictment charged a

conspiracy to possess with intent to distribute in Count One and

possession with intent to distribute in Count Two, the jury’s

determination as to the “distribution” and “possession” of a

quantity of marijuana in connection with Count One and Count

Two,    respectively,       was       not    a       determination       related    to    the

offenses charged in the indictment.                         Therefore, he argues, the

jury made no determination of marijuana quantity for Counts One

and Two, and the district court should have applied the default

provision       in   § 841(b),       that     is,      subsection       (b)(1)(D),       which

applies when the offense involves less than fifty kilograms of

marijuana and provides a statutory maximum (with a prior drug

conviction) of ten years.

            We       conclude     that      the      jury   was    correctly      instructed

about     the    elements       of    the     charged        offenses      and    that     the

imprecise language on the verdict form was not so confusing or

misleading as to call the jury’s finding into question.                                   The

verdict    form      gave   the      jury    the      option      of   finding,    for    each

offense, that Bey was involved with less than 100 kilograms of

marijuana, an option that was added at the request of Bey’s

                                                 9
attorney.        The jury instead found that Bey was involved with at

least 100 kilograms for each count.                   Thus, the jury made the

required finding in compliance with Apprendi.

            Bey challenges the two-level sentencing enhancement he

received under USSG § 2D1.1(b)(1) for possession of a firearm

during the offense.        The increase is authorized if the defendant

possessed a dangerous weapon during the offense.                     Application

Note   3   to    § 2D1.1   explains     that    the    enhancement   “should     be

applied     if    the   weapon   was    present,       unless   it   is   clearly

improbable that the weapon was connected with the offense.”                      The

district court’s factual finding that Bey possessed a dangerous

weapon during the offense is reviewed for clear error.                     United

States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001).                         The

government “need only show that the weapon was present during

the relevant illegal drug activity.”             Id.

            Bey     maintains    that   there    was    no   evidence     that    he

constructively possessed the gun seized from his car in light of

his acquittal on the § 924(c) charge and his wife’s testimony

that she purchased the gun and inadvertently left it in the car.

However, immediately following his arrest, Bey told the agents

he was responsible for the gun’s presence in his car.                       Bey’s

wife, Myra Lewis, testified at trial that she had not placed a

bullet in the chamber.           The case agent testified that, along

with the gun, two magazines of hollow-point bullets were seized,

                                        10
and that the gun had a bullet in the chamber.                             Therefore, in

making its finding, the district court could infer that Bey had

placed    the    bullet      in   the   gun.        The    district      court    did   not

clearly    err    when       it   decided    that    Bey    possessed      the     firearm

during the drug offense.

            Last, Bey argues that the court erred when it made a

two-level enhancement under § 2D1.1(b)(1) for possession of a

firearm and a four-level enhancement for using or possessing a

firearm    in     connection         with      another      felony       offense    under

§ 2K2.1(b)(6), with both enhancements being based on the same

gun.     Bey contends that the enhancement under § 2K2.1(b)(6) was

unreasonable and was reversible error in light of his acquittal

on the § 924(c) charge.

            The    district        court    correctly       adopted      the     probation

officer’s calculation of Bey’s offense level, which started with

separate    offense       level     calculations          for   Counts    One     and   Two

(grouped together in one group under USSG § 3D1.2(c)) and Count

Four   (placed     in    a    separate      group).        See   USSG     § 3D1.1(a)(2)

(Procedure for Determining Offense Level on Multiple Counts).                             A

firearm enhancement was correctly made in the calculation for

both Counts One/Two and Count Four.                   The combined offense level

was then determined as directed in § 3D1.1(a)(3).                               No double

counting error occurred.



                                            11
          We   therefore   affirm    the   sentence   imposed   by   the

district court.   We grant Bey’s motions to file two separate pro

se supplemental briefs and have considered the additional issues

raised there, but find no merit in them.       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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