                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4126


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ALBERT LEE ANDREWS, III,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00117-NCT-1)


Submitted:   November 19, 2013            Decided:   November 27, 2013


Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Kearns Davis, Mary F. Peña, BROOKS, PIERCE, MCCLENDON, HUMPHREY
& LEONARD, L.L.P., Greensboro, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Robert A. J. Lang,
Assistant United States Attorney, Christopher Edwards, Third
Year Law Student, Winston-Salem, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Albert Lee Andrews, III, appeals his convictions and

360-month sentence imposed after he was convicted by a jury of

interference          with    commerce       by       robbery       of    a   Domino’s          Pizza

restaurant,       in     violation          of    18     U.S.C.       § 1951        (2012),         and

carrying,       using,       and     brandishing          a    firearm        during          and   in

relation    to    a     crime      of    violence,       in     violation          of    18    U.S.C.

§ 924(c) (2012).             On appeal, Andrews argues that the evidence

presented and argued by the Government at trial resulted in a

fatal    variance         that       requires          this      court        to    vacate          his

convictions.          He also contends that the district court erred in

sentencing him as a career offender.                          The Government argues that

there    was    no     fatal       variance      between       the       indictment        and      the

evidence       presented       at       trial,     and    that       Andrews’           convictions

should     accordingly          be      affirmed.             The    Government           concedes,

however,       that    Andrews’         career        offender      sentence        is    improper

after this court’s decision in United States v. Davis, 720 F.3d

215 (4th Cir. 2013), and therefore that his sentence should be

vacated and the case remanded for resentencing.

               According       to       Andrews,       evidence          presented       at     trial

established      that        the    money    taken       from       the    Domino’s       business

belonged to the franchise owner rather than to Domino’s, and

such evidence constituted a fatal variance from the indictment.

“This court reviews de novo a claim of constructive amendment to

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an indictment.”            United States v. Malloy, 568 F.3d 166, 177 (4th

Cir. 2009).           “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         --    sometimes           referred       to     as    a    fatal

variance -- occurs.”                 United States v. Allmendinger, 706 F.3d

330, 339 (4th Cir. 2013) (citation omitted), cert. denied, 133

S. Ct. 2747 (2013).                “An indictment is constructively amended,

and a fatal variance occurs when 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.”                       Id. (internal quotation marks and

citation    omitted).              Based         on    our       review    of    the     record,      we

conclude that no fatal variance occurred.

               Andrews argues, and the Government concedes, that his

career    offender         designation            is      no     longer    valid      after       Davis,

because    he    received          only      a    single          sentence       on   the    multiple

charges     that       were       consolidated              by    the     state       court.         The

presentence investigation report noted Andrews’ convictions on

five    counts       of    felony       robbery           with     a    dangerous      weapon,       two

counts of felony assault with a dangerous weapon with intent to

kill,    and     one       count    of       felony        discharge        of    a    weapon       into

occupied property.            These charges were consolidated for judgment

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and resolved at a single hearing, after which the state court

issued   a    single    judgment        sentencing          Andrews    to    a    term   of

imprisonment.        In Davis, this court held “that a consolidated

sentence     under   North     Carolina         law   is    a   single      sentence     for

purposes of the career offender enhancement.”                         Davis, 720 F.3d

at 216; see also id. at 219-20.                   Thus, after Davis, the state

charges that were resolved by the consolidated judgment count as

only one career-offender predicate.                    Andrews has no other prior

felony convictions, and thus he does not qualify for sentencing

as a career offender.

             Accordingly,      we    affirm       Andrews’      convictions,        vacate

his sentence, and remand for resentencing.                           We dispense with

oral   argument      because      the     facts       and    legal    contentions        are

adequately    presented      in     the    materials        before    this       court   and

argument would not aid the decisional process.

                                                                 AFFIRMED IN PART;
                                                      VACATED AND REMANDED IN PART




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