UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                         No. 99-4890
JEROME LUTHER BUNKLEY, a/k/a
Devante Ward,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CR-98-1219)

Submitted: June 27, 2000

Decided: September 15, 2000

Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas P. Gressette, Jr., Assistant Federal Public Defender, Florence,
South Carolina. J. Rene Josey, United States Attorney, Eric Wm.
Ruschky, Assistant United States Attorney, Columbia, South Caro-
lina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Jerome Luther Bunkley was convicted of counterfeiting Federal
Reserve Notes (FRNs), in violation of 18 U.S.C.A.§ 471 (West Supp.
2000), and transferring FRNs, in violation of 18 U.S.C.A. § 473
(West Supp. 2000). Bunkley received a 78-month sentence. He now
appeals, claiming that the indictment was constructively amended and
raising two sentencing errors. Finding no error, we affirm.

The indictment charged that the offenses occurred in the District of
South Carolina. In its charge to the jury, the district court did not
instruct that the jurors must find that the offenses occurred in South
Carolina. Bunkley contends that the indictment was constructively
amended by the judge's instructions. Here, the indictment charged
Bunkley with counterfeiting and transferring counterfeited FRNs. The
challenged instructions alleged the same crime. There was no likeli-
hood that Bunkley was convicted of offenses other than those charged
in the indictment, and, therefore, there was no constructive amend-
ment. See United States v. Floresca, 38 F.3d 706, 710-12 (4th Cir.
1994) (en banc).

Bunkley raises two sentencing errors. First, he asserts that the dis-
trict court improperly increased his offense level to fifteen under U.S.
Sentencing Guidelines Manual § 2B5.1(b)(2) (1998). The enhance-
ment "does not apply to persons who merely photocopy notes . . . that
are so obviously counterfeit that they are unlikely to be accepted even
if subjected to only minimal scrutiny." USSG§ 2B5.1, comment.
(n.4). Additionally, possession of counterfeiting devices or producing
counterfeit obligations warrants the enhancement because of "the
public policy interest in protecting the integrity of government obliga-
tions." USSG § 2B5.1, comment. (backg'd).

Bunkley's conviction under § 471 alone should qualify him for the
enhancement. Even if it does not, there was also evidence that Bunk-

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ley had successfully passed counterfeit notes in South Carolina and
elsewhere. This strongly suggests that the counterfeit FRNs were
more than mere photocopies. Furthermore, the district court person-
ally examined notes that Bunkley had produced and found that they
appeared to be genuine. Finally, Bunkley possessed in his motel room
instruments of counterfeiting: paper stock; a printer/copier; a com-
puter into which had been scanned one side of a FRN; and a paper
cutter. We conclude that the enhancement under USSG§ 2B5.1(b)(2)
was proper.

Bunkley's final argument is that he should not have received a two-
level increase in his offense level under USSG § 2B5.1(b)(3), which
provides for the enhancement if a firearm was possessed in connec-
tion with the offense. Agents discovered in Bunkley's motel room a
loaded handgun in a dresser drawer with blank check stock. Instru-
ments of counterfeiting were found in the same room. Additionally,
Bunkley possessed the firearm in New York, where he produced
and/or passed counterfeit money, and when he moved his operation
to South Carolina. Under these circumstances, the weapon was pres-
ent to protect the operation, and there was no error in applying the
firearm enhancement. See United States v. Nale, 101 F.3d 1000, 1004
(4th Cir. 1996).*

We therefore affirm. 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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*After the formal briefs were filed, Bunkley moved for leave to file a
supplemental brief to raise a new issue. Bunkley claims in his motion
that the enhancement under USSG § 2B5.1(b)(3) was unconstitutional
under Apprendi v. New Jersey, 120 S. Ct. 2348 (2000). Apprendi held
that any fact that increases the penalty beyond the prescribed statutory
maximum, other than the fact of a prior conviction, must be submitted
to a jury and proved beyond a reasonable doubt. See id. at 2362-63.
Because Bunkley's sentence was below the maximum authorized by 18
U.S.C.A. §§ 471, 473, this argument lacks merit, and we deny the
motion.

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