                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4337


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LEON S. WESTBERRY,

                Defendant - Appellant.



                             No. 11-4338


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

LEON S. WESTBERRY,

                Defendant - Appellant.



Appeals from the United States District Court for the District
of South Carolina, at Florence and Columbia. R. Bryan Harwell,
District Judge. (4:10-cr-00093-RBH-1; 3:02-cr-01150-RBH-1)


Submitted:   June 29, 2012                 Decided:   August 1, 2012


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.


James M. Griffin, LEWIS, BABCOCK & GRIFFIN, L.L.P., Columbia,
South Carolina, for Appellant. William N. Nettles, United States
Attorney, Jeffrey Mikell Johnson, Robert F. Daley, Jr.,
William E. Day, II, Assistant United States Attorneys, Columbia,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

            In     2003,    Leon     S.    Westberry     pleaded      guilty      to    two

counts of mail fraud, in violation of 18 U.S.C. § 1341 (2006).

The district court sentenced Westberry to thirty-seven months of

imprisonment, followed by three years of supervised release, and

ordered     Westberry       to     make    restitution         in     the    amount     of

$1,536,000.         Subsequently,         Westberry      was     convicted        by    the

district court following a bench trial of thirty-six counts of

knowingly    and    willfully        making     material      false    statements,       in

violation of 18 U.S.C.A. § 1001(a) (West 2006 & Supp. 2011).

The district court also found that Westberry had violated the

terms of his supervised release for the conduct underlying the

new    convictions       and     for      other    false      statements         made   to

Westberry’s probation officer.                The court sentenced Westberry to

sixty months of imprisonment for the counts of conviction, plus

nine    months      of     imprisonment         for    the     supervised         release

revocation, to be served concurrently.

            Westberry now appeals and, with respect to the appeal

of the revocation of supervised release, counsel has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

questioning      whether       the     district       court    erred        in   revoking

Westberry’s supervised release and unreasonably delayed holding

a hearing on the supervised release revocation.                         Westberry was

informed of his right to file a pro se supplemental brief but

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has not done so.            Finding no error, we affirm the judgment of

the district court in all respects.

             Westberry         first     argues     that    his        new     criminal

convictions        must   be    reversed   because    his    statements         to   his

probation officer fall within the judicial function exception to

the statute.        As Westberry failed to raise this issue before the

district court, we review for plain error.                  See Fed. R. Crim. P.

52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993); see

also United States v. Grace, 396 F. App’x 65 (5th Cir. 2010)

(reviewing same issue for plain error).                To meet this standard,

Westberry must demonstrate that there was error, that was plain,

and that affected his substantial rights.                    Olano, 507 U.S. at

731-32.        Moreover, even if Westberry demonstrates plain error

occurred, we will not exercise our discretion to correct the

error     “unless     the      error    seriously    affect[s]         the    fairness,

integrity or public reputation of judicial proceedings.”                             Id.

(internal quotation marks and citation omitted).

             Pursuant to 18 U.S.C.A. § 1001(a)(2), a defendant may

not,    in   any    matter     within    the   jurisdiction       of    the    judicial

branch, make any materially false statement or representation.

This section does not apply, however, “to a party to a judicial

proceeding . . . for statements, representations, writings or

documents submitted by such party . . . to a judge or magistrate

in that proceeding.”             18 U.S.C. § 1001(b) (2006).                 This court

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has not construed the judicial function exception in the context

of   statements      made   to     a    probation      officer.       Two    circuits,

however, have reached opposite conclusions on similar issues.

Compare United States v. Hovarth, 492 F.3d 1075 (9th Cir. 2007)

(finding exception applied to statements to probation officer

conducting     presentence       investigation);         with     United    States     v.

Manning, 526 F.3d 611 (10th Cir. 2008) (exception did not apply

to failure to include retirement account in financial statement

to probation officer conducting presentence investigation).                           As

there is no binding precedent in this Circuit, and as there is a

conflict among other circuits regarding the applicability of the

exception to this situation, any error by the district court was

not clear and obvious.             See United States v. Rhodes, 32 F.3d

867, 871 (4th Cir. 1994) (for error to be plain it must be

“clear or obvious”).             Accordingly, regardless of the ultimate

merit   of    Westberry’s        argument,      he   cannot      satisfy    the      high

standard of plain error review.

             Westberry      next       argues   that    his     statements     to     his

probation     officer    regarding        his   financial       situation     were    not

material because the probation officer could not alter the terms

of   the     restitution     order.         Westberry      also      challenges      the

sufficiency of the evidence to demonstrate that he knowingly and

willfully     made   the    misrepresentations.               “Our   review    of     the

district court’s finding of materiality is necessarily limited.”

                                            5
United    States    v.    Garcia-Ochoa,            607   F.3d         371,    376    (4th     Cir.

2010).    “Materiality, as an element of a criminal offense, is a

question of fact (or at the very least, a mixed question of law

and fact) to be resolved by the fact finder, which in the case

of a bench trial is the federal district judge.”                               Id. (citations

omitted).       Following a bench trial, we review a district court’s

factual findings for clear error and review a challenge to the

sufficiency of the evidence “in the light most favorable to the

government in order to decide whether any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.”          Id. (internal quotation marks, alteration,

and citations omitted).

            To     be    material,       statements        must        “ha[ve]       a    natural

tendency to influence, or [have been] capable of influencing,

the decision of the decisionmaking body to which [they were]

addressed.”       Kungys v. United States, 485 U.S. 759, 770 (1988);

see also Garcia-Ochoa, 607 F.3d at 375 (“The test of materiality

is   whether      the    false    statement          has     a    natural          tendency      to

influence       agency   action     or    is       capable       of    influencing         agency

action.”) (citations omitted).                     We have thoroughly reviewed the

record    and    conclude    that    the       district          court       did    not   err    in

finding     Westberry       guilty       of        the   offenses,            as     there      was

substantial evidence to show that Westberry’s false statements



                                               6
were material and that Westberry knowingly and willfully made

the misrepresentations.

            Westberry      also     argues       that    the    convictions           for   the

first    thirty-two       counts     of    the     indictment         must       be   vacated

because     the    court’s        findings        following          the     bench       trial

demonstrate       that      the      court       constructively             amended         the

indictment.       “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. Hackley, 662 F.3d 671, 682 n.6 (4th Cir. 2011)

(internal quotation marks and citation omitted).                             Constructive

amendments       are   “fatal      variances        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. Perry, 560 F.3d

246, 256 (4th Cir. 2009) (internal quotation marks and citations

omitted).

            A constructive amendment is “error per se and is an

independent       ground    for     reversal        on    appeal          even    when      not

preserved by an objection.”               United States v. Roe, 606 F.3d 180,

189-90    (4th     Cir.    2010)        (citation       omitted).           After      having

carefully     considered          the     record        and    the        relevant       legal

                                             7
authorities,     we    conclude          that       the   district        court       did    not

constructively amend the indictment.

            With respect to the court’s revocation of Westberry’s

supervised    release,       appellate      counsel        first    questions          whether

the   district      court     abused       its       discretion      in     finding         that

Westberry    violated       the    terms    of      his   supervised       release.           We

review the district court’s revocation of supervised release for

abuse of discretion.              See United States v. Pregent, 190 F.3d

279, 282 (4th Cir. 1999).                The district court need only find a

violation of a term of supervised release by a preponderance of

the evidence.       18 U.S.C.A. § 3583(e)(3) (West Supp. 2008); see

United States v. Armstrong, 187 F.3d 392, 394 (4th Cir. 1999).

Appellate courts review for clear error factual determinations

underlying the conclusion that a violation occurred.                                    United

States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).                                      As

discussed above, the district court did not err in finding that

Westberry    made     materially         false       statements     to     his    probation

officer.     We therefore conclude that the court did not err in

finding,    based     in   part     on    the       finding   of   guilt     of       the     new

offenses, that Westberry violated the terms of his supervised

release.

            Finally,        counsel         questions         whether           the         court

unreasonably     delayed          holding       a     hearing      on     the     probation

officer’s petition for revocation of supervised release, filed

                                            8
fifteen months prior to the revocation hearing.                    However, the

district court held the revocation hearing at the same time in

conjunction with the sentencing proceeding for Westberry’s new

criminal convictions.        As the facts supporting the petition for

revocation of supervised release were intertwined with the facts

supporting   the new criminal charges, the district court acted

well within its discretion in holding the supervised release

revocation   hearing      after    the   trial   for   the   new   charges    was

completed.

          We have examined the entire record in accordance with

the requirements of Anders with regard to the supervised release

revocation   and   have    found    no   meritorious    issues     for   appeal.

Accordingly, we affirm the judgment of the district court.                   This

court requires that counsel inform Westberry, in writing, of the

right to petition the Supreme Court of the United States for

further review.    If Westberry requests that a petition be filed,

but counsel believes that such a petition would be frivolous,

then counsel may move in this court for leave to withdraw from

representation.    Counsel’s motion must state that a copy thereof

was served on Westberry.          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 in the

decisional process.

                                                                         AFFIRMED

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