                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4187


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GREGORY ALFRED WHYTE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Richard D. Bennett, District Judge.
(1:10-cr-00212-RDB-1)


Submitted:   November 4, 2011             Decided:   January 3, 2012


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Erek L. Barron, BARRON & ASSOCIATES, LLC, Largo, Maryland, for
Appellant.   Rod J. Rosenstein, United States Attorney, John F.
Purcell, Jr., Sujit Raman, Assistant United States Attorneys,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             After a jury trial, Gregory Alfred Whyte was convicted

of one count of conspiracy to possess with intent to distribute

cocaine, in violation of 21 U.S.C. § 846 (2006), and one count

of attempted possession with intent to distribute cocaine and

aiding and abetting such conduct, in violation of 18 U.S.C. § 2

(2006) and 21 U.S.C. § 846.                   Whyte makes several challenges to

his convictions.           Finding no error, we affirm.

             Whyte claims that the charges in his indictment were

improperly joined.              He contends he was charged with one drug

conspiracy     and     two      unrelated       possession       charges.        Although

Whyte’s      motion    for       severance           was   denied,   the       Government

eventually dropped one of the possession charges and proceeded

to trial on the remaining two charges.

             Fed.     R.    Crim.     P.      8(a)    provides    that    two    or     more

offenses may be charged in the same indictment when the offenses

“are of the same or similar character, or are based on the same

act or transaction, or are connected with or constitute parts of

a   common    scheme       or   plan.”        This     court    reviews   de    novo     the

district     court’s        refusal      to    grant       a   misjoinder      motion    to

determine whether the initial joinder of the offenses was proper

under Rule 8(a).            United States v. Mackins, 315 F.3d 399, 412

(4th Cir. 2003).           If joinder was proper, review of the denial of

a motion to sever is for abuse of discretion under Fed. R. Crim.

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P. 14.     Id.     If joinder was improper, the court “review[s] this

nonconstitutional error for harmlessness, and reverse[s] unless

the    misjoinder      resulted       in    no    ‘actual           prejudice’       to    the

defendants ‘because it had [no] substantial and injurious effect

or influence in determining the jury’s verdict.’”                             Id. (quoting

United States v. Lane, 474 U.S. 438, 449 (1986).

             Because      of    the      prospect           of     duplicating       witness

testimony,        impaneling    additional         jurors          or     wasting    limited

judicial     resources,        joinder      is    the        rule       rather   than      the

exception.        United States v. Hawkins, 589 F.3d 694, 700 (4th

Cir.   2009).      Joinder     of    multiple     charges           involving       the   same

statute     is     “unremarkable”.          Id.        at        702-03    (citing    United

States v.    Acker,       52   F.3d    509,      514    (4th        Cir.    1995)    (courts

routinely allow joinder of bank robbery charges against the same

defendant)).

             We    fail   to   see    any     error         in    the     district   court’s

decision denying the motion to sever.                             We note that even if

there was error in the joinder, Whyte has failed to show actual

prejudice.        A review of the record shows that the jury only

heard evidence pertaining to the one possession charge, and no

evidence relating to the dismissed charge was admitted.

             Whyte also argues that by virtue of the Government’s

decision to sever one of the charges, there was a constructive

amendment of the indictment that became a fatal variance.                                   “A

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constructive amendment to an indictment occurs when . . . 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.

            We   conclude       this    claim       is   without    merit.         The

Government did not present evidence that broadened the possible

bases for a conviction.           Neither is there any indication that

the indictment was altered so as to change the elements of the

charged offenses or that Whyte was convicted of anything other

than the two charges.

            Whyte also claims he received ineffective assistance

of trial counsel because counsel failed to present the testimony

of two impeachment witnesses.            In order to succeed on a claim of

                                          4
ineffective assistance of counsel, Whyte must show:                       (1) that

his counsel’s performance fell below an objective standard of

reasonableness; and (2) that counsel’s deficient performance was

prejudicial.        Strickland    v.    Washington,       466    U.S.     668,   687

(1984).       Ineffective    assistance      of    counsel      claims    are    not

cognizable    on    direct   appeal,    unless      the   record    conclusively

establishes ineffective assistance.             United States v. James, 337

F.3d 387, 391 (4th Cir. 2003); United States v. Richardson, 195

F.3d 192, 198 (4th Cir. 1999).              Rather, to allow for adequate

development    of    the   record,     claims     of   ineffective       assistance

generally should be brought in a 28 U.S.C.A. § 2255 (West Supp.

2011) motion.       United States v. Gastiaburo, 16 F.3d 582, 590

(4th   Cir.    1994).        We   conclude        that    Whyte’s    ineffective

assistance of counsel claim is not conclusively established by

the record, and we will forego reviewing the claim.

            Finally, Whyte argues that the district court abused

its discretion by denying his motion to continue the hearing on

his motions seeking a new trial.                The court’s decision not to

grant a continuance and to have the scheduled hearing on Whyte’s

motions for a new trial is reviewed for abuse of discretion.

United States v. Smith, 62 F.3d 641, 651 (4th Cir. 1995).

            We see no abuse of discretion.                Whyte has failed to

show that he was prejudiced as a result of the district court’s

decision.

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           Accordingly, we affirm the convictions and sentence.

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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