                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 18-4429


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

RANDOLPH HARRIS AUSTIN,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:16-cr-00277-RJC-DCK-1)


Submitted: March 27, 2019                                         Decided: April 3, 2019


Before WILKINSON, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Aaron E. Michel, Charlotte, North Carolina, for Appellant. R. Andrew Murray, United
States Attorney, Charlotte, North Carolina, Amy E. Ray, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Randolph Harris Austin appeals his convictions and 120-month sentence imposed

after a jury found him guilty of distribution and possession with intent to distribute

cocaine (Counts 1 and 2), as well as possession with intent to distribute cocaine base

(Count 3), each in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2012). On appeal,

Austin argues that the district court should have granted him a longer trial continuance so

that he could retain an expert witness. He also disputes the denial of his Fed. R. Crim. P.

29 motion for a judgment of acquittal on Count 3. Next, Austin contends that the court’s

jury instructions constructively amended the indictment as to Count 3. Finally, Austin

challenges the procedural and substantive reasonableness of his sentence. For the reasons

that follow, we affirm.

       “We review . . . [a district court’s ruling on] a motion for a continuance for abuse

of discretion.” United States v. Copeland, 707 F.3d 522, 531 (4th Cir. 2013). “A district

court abuses its discretion when its . . . [decision] is an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable request for delay.”        Id.

(internal quotation marks omitted).

       Here, Austin moved for a continuance on the day before trial, seeking more time

to review evidence with counsel and indicating his desire to find a chemist who could

testify about the drug weight and a chain of custody issue. Noting the inconsistency

between Austin’s motion to continue and a previously filed speedy trial motion, as well

as the fact that a jury pool had already been assembled, the court granted the motion but

provided only a one-day continuance for counsel and Austin to confer. Based on our

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review of these events, we discern no abuse of discretion in the district court’s handling

of Austin’s eve-of-trial motion for a continuance.

       Central to Austin’s next two points—the sufficiency challenge and the jury

instruction claim—is his contention that a controlled substance’s identity is an element of

a § 841(a)(1) offense. However, we have previously held that “a defendant need not

know the exact nature of a drug in his possession to violate § 841(a)(1); it is sufficient

that he . . . be aware that he . . . possesses some controlled substance.” United States v.

Ali, 735 F.3d 176, 186 (4th Cir. 2013) (internal quotation marks omitted); see United

States v. Dowdell, 595 F.3d 50, 68 (1st Cir. 2010) (“Because [the defendant] was

prosecuted under § 841(a)(1), which prohibits distribution of any controlled substance

regardless of type, drug identity had no bearing on the substance of the charge.”).

Accordingly, we conclude that the particular identity of the controlled substance Austin

possessed was not integral to the charge in Count 3. See United States v. Tillman, __

F.3d __, __, No. 17-4648, 2019 WL 921534, at *7 (4th Cir. Feb. 26, 2019) (discussing

proof required for baseline § 841 offense).

       Turning to the sufficiency challenge, “[w]e review de novo a district court’s denial

of a Rule 29 motion.” United States v. Burfoot, 899 F.3d 326, 334 (4th Cir. 2018). “We

must sustain a guilty verdict if, viewing the evidence in the light most favorable to the

prosecution, the verdict is supported by substantial evidence.” Id. “Substantial evidence

is that which a reasonable finder of fact could accept as adequate and sufficient to support

a conclusion of a defendant’s guilt beyond a reasonable doubt.” Id. (internal quotation

marks omitted).

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       “The essential elements of . . . a [§ 841(a)(1)] distribution offense are (1)

possession of the controlled substance; (2) knowledge of the possession; and (3) intent to

distribute.” United States v. Hall, 551 F.3d 257, 267 n.10 (4th Cir. 2009). At trial, the

Government produced evidence that, incident to Austin’s arrest, law enforcement

recovered from his vehicle a baggie of cocaine and a leaking plastic bag containing an

unknown substance. Austin told officers that the cocaine was for personal use and that

the substance in the plastic bag was the result of a failed attempt to convert cocaine into

cocaine base. However, subsequent forensic tests of the substance in the plastic bag

revealed that Austin had successfully produced 15.15 grams of cocaine base.

       We conclude that the Government provided the jury with ample evidence to find

that Austin knowingly possessed an illicit substance—regardless of whether he thought

the substance was cocaine or cocaine base. And, in light of the Government’s evidence

establishing that Austin previously trafficked cocaine, ∗ as well as the absence of any

contemporaneous claim that the substance in the plastic bag, unlike the baggie of cocaine,

was for personal use, we reject Austin’s argument that the evidence was insufficient to

establish his intent to distribute. See United States v. Branch, 537 F.3d 328, 341-42 (4th

Cir. 2008) (finding that prior conviction for possession with intent to distribute cocaine

base was relevant to establish, in subsequent trial, defendant’s intent to distribute cocaine

base). Accordingly, we affirm the district court’s denial of Austin’s Rule 29 motion.


       ∗
        In his opening statement, Austin admitted the conduct charged in Counts 1 and 2,
and the Government corroborated this admission by presenting evidence that Austin sold
cocaine to a confidential informant on two separate occasions before his arrest.

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       We review de novo whether the district court’s jury instructions constructively

amended the defendant’s indictment. United States v. Miltier, 882 F.3d 81, 92 (4th Cir.),

cert. denied, 139 S. Ct. 130 (2018). A constructive amendment—also called a fatal

variance—occurs when the jury instructions “broaden[] the bases for conviction beyond

those charged in the indictment” or “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. at 93 (internal quotation marks omitted). By contrast, when the jury

instructions differ from the indictment’s allegations without “alter[ing] the crime charged

. . . , a mere variance occurs.” United States v. Malloy, 568 F.3d 166, 178 (4th Cir.

2009); see Miltier, 882 F.3d at 93. “Such a variance does not violate a defendant’s

constitutional rights unless it prejudices the defendant 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.” Miltier, 882 F.3d at 93 (internal quotation marks

omitted).

       While Count 3 of the superseding indictment charged Austin with possession with

intent to distribute cocaine base, the district court instructed the jury that a unanimous

finding that Austin intended to distribute either cocaine base or cocaine would suffice to

sustain a guilty verdict. But because drug identity is not an element of a § 841(a)(1)

offense, the court’s instruction did not “alter the crime charged,” Malloy, 568 F.3d at 178,

but rather departed from the indictment in a manner “nonessential to the conclusion that

the [§ 841(a)(1)] crime must have been committed,” Miltier, 882 F.3d at 93 (internal

quotation marks omitted). And because Austin has not demonstrated any prejudice

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resulting from this variance, we conclude that the court did not commit reversible error.

See id.; Dowdell, 595 F.3d at 57, 68-69 (holding that jury verdict convicting defendant of

cocaine base distribution would, at most, harmlessly vary from indictment charging

cocaine distribution).

       Finally, Austin assigns several procedural errors to the district court’s Sentencing

Guidelines calculation. However, we need not consider these arguments because, even if

Austin is correct, the record establishes that any error is harmless. See United States v.

Savillon-Matute, 636 F.3d 119, 123 (4th Cir. 2011).              Under the “assumed error

harmlessness inquiry,” a procedural error is harmless—and, thus, does not warrant

reversal—if “(1) the district court would have reached the same result even if it had

decided the [G]uidelines issue the other way, and (2) the sentence would be reasonable

even if the [G]uidelines issue had been decided in the defendant’s favor.” United States

v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014) (internal quotation marks omitted).

Here, “the district court made it abundantly clear that it would have imposed the same

sentence . . . regardless of the advice of the Guidelines,” id., thus satisfying the first prong

of the assumed error harmlessness inquiry, id. at 383.

       As to the second prong, “[w]hen reviewing the substantive reasonableness of a

sentence, we examine the totality of the circumstances to see whether the sentencing

court abused its discretion in concluding that the sentence it chose satisfied the standards

set forth in [18 U.S.C.] § 3553(a) [2012].” Id. (internal quotation marks omitted). When

assessing the reasonableness of an above-Guidelines-range sentence, we “may consider

the extent of the deviation, but must give due deference to the district court’s decision

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that the § 3553(a) factors, on a whole, justify the extent of the variance.” Gall v. United

States, 552 U.S. 38, 51 (2007).

       In 2008, the district court sentenced Austin to life imprisonment for two cocaine

distribution offenses. However, during a 2014 resentencing hearing, at which Austin

asserted that he had finally learned the difference between right and wrong, the court

reduced his sentence to 132 months. Nevertheless, at Austin’s sentencing for the instant

offenses, the Government produced unrebutted evidence that, shortly after his release in

2015, Austin began looking for a new source of supply. In other words, despite being

granted a second lease on life, Austin promptly abandoned his newfound rectitude in

favor of his old criminal proclivities. Thus, in view of Austin’s significant criminal

history and the compelling need to deter Austin from further criminal acts and to protect

the public, see 18 U.S.C. § 3553(a)(1), (2)(B), (C), we discern no abuse of discretion in

the district court’s decision to impose a substantial upward variance sentence.

       Accordingly, we affirm the judgment of the district court. 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




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