                 IN THE UNITED STATES COURT OF APPEALS

                              FOR THE FIFTH CIRCUIT



                                     No. 01-50730
                                   Summary Calendar




UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                         versus

GUS PETER GRAMMAS,

                                                       Defendant-Appellant.

                 __________________________________________

                    Appeal from the United States District Court
                         for the Western District of Texas
                          USDC No. W-00-CR-110-ALL
                 __________________________________________
                                   May 2, 2002

Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:*


      *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
      Gus Peter Grammas appeals his bench trial conviction for altering, tampering,

obliterating, or removing the vehicle identification number on a motor vehicle, and

for possession of a firearm by a felon. He contends that the

Government constructively amended the indictment with regard to being a felon in

possession of a gun.

      A constructive amendment “occurs when the jury is permitted to convict the

defendant on a factual basis that effectively modifies an essential element of the

offense charged in the indictment.”1 Here, the essential elements of the charged

offense were not modified and, in fact, did not differ from the charge in the

indictment.

      Grammas also contends that the evidence at trial was insufficient to sustain

the verdict of his being a felon in possession of a gun because the Government did

not adduce evidence demonstrating that he knew that the gun was in his house. This

court “reviews a district court’s finding of guilt after a bench trial to determine

whether it is supported by ‘any substantial evidence.’”2

      Although “mere control or dominion over the place in which contraband or an

illegal item is found by itself is not enough to establish constructive possession


      1
       United States v. Millet, 123 F.3d 268, 272 (5th Cir. 1997).
      2
       United States v. Ceballos-Torres, 218 F.3d 409, 411 (5th Cir. 2000) (citation
omitted), cert. denied, 531 U.S. 1102 (2001).
when there is joint occupancy of a place,”3 the record contains sufficient evidence

that Grammas had ownership and control over the weapon. His conviction must be

and is affirmed.

         Grammas also contends that the Government did not meet its burden of

proving the amount of loss requiring restitution in the amount of $8,012.80. We

review the legality of the district court’s order of restitution de novo and, if the

award of restitution is permitted by the appropriate law, we review the propriety of

the particular award for an abuse of discretion.4 The Government, to its credit, has

called to our attention that the amount of restitution is related to the conduct charged

in Count One of the indictment, which was dismissed. This obvious error requires

that the district court’s order of restitution be vacated , and the case remanded for

resentencing.5

         Finally, Grammas maintains that the addition of one point to his criminal

history score for his prior misdemeanor conviction for aiding and abetting the illegal

entry of aliens was error under U.S.S.G. § 4A1.2(c). Because Grammas was

sentenced to one year of probation, U.S.S.G. § 4A1.2(c)(1) does not apply.


         3
        United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993) (emphasis in
original).
         4
          United States v. Norris, 217 F.3d 262, 271 (5th Cir. 2000).
         5
          See 18 U.S.C. § 3742(f)(1); United States v. Stout, 32 F.3d 901, 905 (5th Cir.
1994).
Accordingly, unless Grammas’ sentence for aiding and abetting the illegal reentry of

aliens is “similar” to those offenses listed in U.S.S.G. § 4A1.2(c)(2), the district

court’s inclusion of his conviction for aiding and abetting the illegal reentry of aliens

would be error. Grammas, however, does not address the issue of whether his

conviction for aiding and abetting the illegal reentry of aliens is similar to the listed

offenses. He thus has waived this point of error.6 The district court’s sentence

with regard to this issue is affirmed.

      AFFIRMED IN PART; VACATED AND REMANDED IN PART.




      6
       See, e.g., United States v. Green, 964 F.2d 365, 371 (5th Cir. 1992).
