                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 12-4575


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

NADIN SAMNANG,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:11-cr-00575-GBL-1)


Submitted:   May 30, 2013                  Decided:   June 18, 2013


Before KING, DIAZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Shanlon Wu, WU, GROHOVSKY & WHIPPLE, PLLC, Washington, D.C., for
Appellant.   Neil H. MacBride, United States Attorney, Paul J.
Nathanson,   Assistant  United   States   Attorney,  Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               A federal jury convicted Nadin Samnang of conspiracy

to    commit     wire     and    mail    fraud,         in    violation    of     18    U.S.C.A.

§ 1349    (West      Supp.       2012);    nine          counts       of   wire    fraud,       in

violation      of    18    U.S.C.A.      § 1343         (West     Supp.    2012);       and    two

counts of mail fraud, in violation of 18 U.S.C.A. § 1341 (West

Supp.     2012).           The     district         court        sentenced        Samnang       to

eighty-four months of imprisonment and he now appeals.                                   Finding

no error, we affirm.

               Samnang first argues on appeal that the district court

abused its discretion in denying his requests for a continuance

of the trial based on counsel’s lack of preparation.                                   We review

the     denial      of    a     motion    for       a        continuance    for        abuse    of

discretion.         United States v. Cole, 631 F.3d 146, 156 (4th Cir.

2011).     “[E]ven if such an abuse is found, the defendant must

show that the error specifically prejudiced [his] case in order

to prevail.”         United States v. Williams, 445 F.3d 724, 739 (4th

Cir. 2006) (internal quotation marks and citation omitted).                                    We

have    thoroughly        reviewed       the    record          and    conclude        that    the

district court did not abuse its discretion in denying Samnang’s

additional continuance requests after the court, upon Samnang’s

motion, had already granted a continuance of the trial date by

more than one month.



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               Samnang next argues that the court erred by including

in the loss calculation under the Sentencing Guidelines the loss

attributable         to     a     property         that    was     not     listed       in     the

indictment.          Samnang argues that this created a fatal variance

that prejudiced him because it resulted in increased penalties.

“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)

(internal quotation marks and citation omitted), petition for

cert. filed, (U.S. Apr. 23, 2013) (No. 12-1271).                                   “[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).

               We have reviewed the record and the relevant legal

authorities and conclude that there was no variance.                                    Samnang

does not allege that the Government produced evidence related to

this    uncharged         property         at    trial,     resulting       in    a    variance

between    the       indictment       and        the    evidence    at    trial.         On   the

contrary, Samnang concedes that the Government produced no such

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evidence in its case in chief.                          Moreover, Samnang’s reliance on

United    States          v.    Stigler,      413       F.3d       588     (7th    Cir.    2005)    is

misplaced.          The Seventh Circuit in Stigler determined that a

fatal variance occurred where the government presented evidence

of more than one conspiracy where the indictment charged only

one   conspiracy.               Id.    at    592.            The   variance       prejudiced       the

defendant          by     increasing         the    number           of    victims        under    the

Guidelines, resulting in additional enhancement at sentencing.

Id. at 593.             Here, however, there was no constructive amendment

to the indictment or fatal variance between the indictment and

the evidence adduced at trial and therefore we need not reach

the issue of prejudice.

              Moreover, to the extent that Samnang argues that the

district      court        erred      in    including          this       property    as     relevant

conduct    for          the    loss    calculations            under       the    Guidelines,      his

failure       to    raise           this    issue       in     his     opening       brief    waives

appellate review.               Even were we to review this issue, however,

it    lacks    merit           as    the    district          court       correctly       found    the

relevant conduct by a preponderance of the evidence.                                       See U.S.

Sentencing Guidelines Manual § 1B1.3(a) (definition of relevant

conduct); see also United States v. Miller, 316 F.3d 495, 504

(4th Cir. 2003) (the district court “need only make a reasonable

estimate of the loss” by a preponderance of the evidence).



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            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 in the decisional

process.



                                                                  AFFIRMED




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