UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                          No. 95-5444

MARK ANTONIUS ALLEN, a/k/a Snoop,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                            No. 95-5459
MICHAEL PEAKS, a/k/a Michael
Peake,
Defendant-Appellant.

Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-94-249)

Argued: December 6, 1996

Decided: July 21, 1999

Before ERVIN and MICHAEL, Circuit Judges,
and HALL,* Senior Circuit Judge.
_________________________________________________________________

*Senior Judge Hall heard oral argument in this case but died prior to
the time the decision was filed. The decision is filed by a quorum of the
panel. 28 U.S.C. § 46(d).
Affirmed in part and remanded in part by unpublished opinion. Judge
Ervin wrote the opinion, in which Judge Michael joined.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Franklin Loflin, III, Durham, North Carolina, for
Appellant Allen; Walter Thaniel Johnson, Jr., Greensboro, North Car-
olina, for Appellant Peaks. Robert Michael Hamilton, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina,
for Appellee. ON BRIEF: Walter C. Holton, Jr., United States Attor-
ney, David B. Smith, Assistant United States Attorney/Senior Litiga-
tion Counsel, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

ERVIN, Circuit Judge:

Mark Antonius Allen ("Allen") and Michael Peaks ("Peaks") were
both convicted by a jury of conspiracy to possess with intent to dis-
tribute and conspiracy to distribute cocaine base ("crack cocaine") in
violation of 21 U.S.C.A. §§ 841(b)(1)(A) (West 1981 & Supp. 1994),
846 (West 1981 & Supp. 1999).1 Peaks raised two challenges to his
conviction and one to his sentencing. With regard to his conviction,
_________________________________________________________________
1 The Court has been informed by the Bureau of Prisons that the defen-
dant, Mark Antonius Allen, died on May 9, 1999, as a result of a cardiac
arrest. As to him, this appeal has now abated. His appeal is dismissed and
this case is remanded to the district court with instructions to vacate the
judgment against him and to dismiss his indictment. See United States v.
Dudley, 739 F.2d 175, 176 (4th Cir. 1984) (collecting cases). Therefore,
we only address the claims raised by the co-defendant, Michael Peaks,
herein.

                    2
Peaks argued that the judge's jury instructions constructively
amended his indictment in violation of the Fifth and Sixth Amend-
ments of the Constitution. In the alternative, Peaks argued that there
was a prejudicial variance between the indictment and the evidence
presented at trial violating either the Fifth or Sixth Amendment. With
respect to his sentencing, Peaks argued that the district court erred in
calculating the amount of cocaine attributed to him.

We reject all of Peaks' arguments. First, because we interpret lia-
bility under § 846 as only requiring proof of a controlled substance,
as defined by § 841, and not proof of a particular drug, we hold that
there was no constructive amendment. Second, because there was no
evidence of lack of notice or a threat of double jeopardy, we hold that
there was no prejudicial variance. Third, after reviewing the record,
we hold that the district court's calculation of the amount of cocaine
attributable to Peaks was not clearly erroneous. We, therefore, affirm
the judgment of the district court.

I.

Allen and Peaks were indicted on October 31, 1994, for one count
of conspiracy to "knowingly, intentionally and unlawfully" possess
with intent to distribute and to distribute in excess of 50 grams of
crack cocaine "[b]eginning in the Spring of 1991 . . . and continuing
up to and including July 1994." Both defendants pled not guilty and
a jury trial ensued.

At trial, the Government presented testimony of many members of
the "Pimps," a group that purchased powder cocaine from the defen-
dants and then converted it into crack cocaine for sale, and from per-
sons involved in other facets of the conspiracy. The defendants' trial
strategy was essentially to impeach the credibility of the Government
witnesses. Although the evidence that both defendants were selling
powder cocaine was quite strong, there was almost no evidence that
showed that either of the defendants actually had knowledge of or
involvement in the conversion of the powder to crack. Similarly, no
evidence directly linked either defendant to the conspiracy until the
summer or fall of 1992, even though the indictment alleged that they
had begun to sell crack in 1991.

                    3
The district court recognized this disparity and during the trial
asked the Government, "We have heard nothing about the crack with
respect to [the defendants]. Is the evidence going to show that Allen
and Peaks distributed powder only?" The Government responded,
"They distributed powder that was cooked up. But the evidence will
show that they were aware that it was being cooked up."

The only evidence the Government presented concerning the
defendants' knowledge that their powder cocaine was being converted
into crack cocaine was the testimony of two witnesses, Michael Kear-
ney ("Kearney") and James Davis, III ("Davis").

Kearney testified that on more than one occasion both he and Peaks
had utilized the term "come back" in conversations with each other.
Kearney explained that "come back" was "a terminology that's used
quite often among drug dealers, when transforming powder cocaine
to rock or free base substance. And the terminology is used to express
how much of the powder came back into rock form." After explaining
the process of converting powder cocaine into crack cocaine, Kearney
characterized the powder cocaine he had received from Peaks as
"good" for conversion into crack cocaine.

Davis testified about a conversation between himself, Allen, and
another individual. Davis told Allen that the cocaine powder Allen
had sold to Davis was "alright" and that Davis had lost one or two
grams of cocaine in the conversion process from powder to crack.
Davis concluded, "They really didn't respond to it, but--like, they
didn't know nothing about crack."

At the conclusion of the Government's case, both defendants sub-
mitted motions for acquittal pursuant to Fed. R. Crim. P. 29. They
argued that there was a "fatal variance" between the indictment and
the Government's evidence at trial. In particular, the defendants char-
acterized Kearney's testimony as inadequate because he "gave no
context" for the use of the term "come back." The Government
responded that the defendants knew that the powder they supplied
was being converted into crack.

Setting aside the question of knowledge, the judge asked how the
defense was prejudiced by the disparity between the indictment and

                    4
the government's evidence. The defendants responded by asserting
two grounds for prejudice. First, the defendants argued that had they
known that they were being charged for chain trafficking (where the
defendants were "middle men" who supplied the raw material to oth-
ers who then made it into the final product and distributed it them-
selves) instead of simple trafficking (where the defendants would
have been the final distributors of the drugs), their trial strategy would
have been very different. Second, the defendants argued that allowing
the Government to prove "crack" cocaine through such attenuated rea-
soning violated their presumption of innocence and right to proof
beyond a reasonable doubt.

The district court denied the motion for acquittal. The judge rea-
soned that § 846 should be interpreted as follows:

          The statute makes no distinction, in making it a crime, about
          whether it is cocaine powder or cocaine crack. . . .[O]n the
          question of guilt, you don't have to say whether it's crack
          or powder, you just have to show that it's cocaine.

The defendants presented their cases and the trial concluded. At the
conclusion of the jury instructions conference, the district court sum-
marized the defendants' objections to the jury instructions as
"[e]ssentially, the defendants are saying that there is either a conspir-
acy to possess and deliver crack cocaine, or there is no conspiracy at
all." The judge concluded that "there can be a conspiracy, even
though the indictment alleges cocaine base, crack. .. . [A]s long as
the jury finds beyond a reasonable doubt that cocaine in any of its
forms was the basis of the agreement, . . . there can be a conviction
under this indictment."

The judge charged the jury that "cocaine base crack is an isomer
of cocaine hydrochloride. Therefore, if you find from the evidence,
and beyond a reasonable doubt, that the conspiracy was to possess
and distribute cocaine in any form, then that would be sufficient to
satisfy the Government's burden as to the controlled substance." The
jury's verdict form gave the jury the option of choosing "guilty" or
"not guilty" of "the crime charged in the Indictment." The jury found
both defendants guilty.

                     5
At sentencing, the district court gave Peaks' counsel ample oppor-
tunity to argue all of his objections to the amount of cocaine calcu-
lated in the Pre-Sentencing Report. The district court had read the
entire record twice and taken detailed notes in preparation for the sen-
tencing hearing.

With regard to one of Peaks' objections, the judge reduced the
amount of attributable cocaine. The district court held that Kearney's
affirmative answer to the question, "do you recall making a statement
. . . that the total [amount of cocaine] that you purchased from Mr.
Allen or Mr. Peaks was approximately 30 to 35 ounces?," was not
substantive evidence. Instead of 30-35 ounces, the judge attributed 22
ounces to Peaks from that transaction.

The district court found, "[A]s to Mr. Peaks I can only find him as
a delivery person in this, and I can't find other participation." When
asked whether he was satisfied with the district court's final calcula-
tion of 623.7 grams of cocaine, Peaks' counsel responded, "Yes, sir."

At the conclusion of these proceedings, the district court sentenced
Allen to 189 months in prison and Peaks, 74 months. While sentenc-
ing the defendants, the judge commented that although there was suf-
ficient evidence to sentence them under the more stringent crack
cocaine guidelines, he decided to sentence them under the powder
cocaine guidelines. Both defendants appealed.

II.

The decision whether to give a jury instruction and the content of
an instruction are normally reviewed for an abuse of discretion. See
United States v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996). Even if a
court erroneously uses or rejects a jury instruction, the verdict will be
reversed only if the error is "prejudicial based on a review of the
record as a whole." United States v. Ellis , 121 F.3d 908, 923 (4th Cir.
1997).

With regard to constructive amendment, however, this Court con-
siders a constructive amendment of the indictment to be reversible
error per se. If we find a constructive amendment, we are required "to

                    6
conclusively presume that the defendant has been prejudiced by the
constructive amendment and to forgo harmless error analysis." United
States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994) (en banc).
Although most of our sister Circuits appear to agree that constructive
amendment is reversible error per se, see id. at 711 n.12 (collecting
cases), at least one Circuit, the Fifth Circuit, is in disagreement. See
United States v. Fletcher, 121 F.3d 187, 193 & n.4 (5th Cir. 1997)
(declining to adopt a per se rule).

With regard to sentencing, this Court reviews the district court's
findings as to the quantity of drugs attributable to a particular defen-
dant for clear error. See United States v. Williams, 986 F.2d 86, 90
(4th Cir. 1993).

This Court has jurisdiction pursuant to 28 U.S.C.A.§ 1291 (West
1993) because this case is an appeal of a final decision of the district
court.

III.

We begin by reviewing Peaks' claim that his indictment was con-
structively amended during trial. A constructive amendment occurs
when the prosecution (usually through trial evidence or argument) or
the court (usually through jury instructions) so alters the terms of the
indictment that there is a substantial likelihood that the defendant was
convicted of an offense other than that charged in the indictment, in
violation of the Fifth Amendment right to grand jury indictment and
the Sixth Amendment right to notice to prepare a defense. See
Floresca, 38 F.3d at 710. If a constructive amendment has occurred,
it is irrelevant whether, given the evidence before it, the jury could
have convicted the defendant of the charge in the original, narrower
indictment, as well as in the amended, broader indictment. Id. Yet,
despite the importance of preserving to the grand jury the power of
indictment, not all technical changes of an indictment constitute con-
structive amendments. "Unnecessary" parts of the indictment that are
"merely surplusage . . . may be rejected" without constructively
amending the indictment. United States v. Miller , 471 U.S. 130, 136-
37 (1985).

The facts clearly establish that a technical change of the indictment
occurred in this case. There is no question that the indictment was lit-

                     7
erally amended by the judge. The indictment alleged only conspiracy
to distribute crack cocaine, yet the judge instructed the jury that they
could find the defendants guilty of conspiracy to distribute either
crack or powder cocaine. The only question before us is whether this
technical change altered a portion of the indictment necessary to the
offense proved.

To address this question, we must determine whether§ 846 distin-
guishes between powder or crack cocaine for the purposes of liability.
If it does, then the change altered a necessary portion of the indict-
ment, thereby constructively amending the indictment. If it does not,
then the change altered an unnecessary portion of the indictment and
no constructive amendment occurred. Since we find that § 846 does
not distinguish between powder or crack cocaine for the purposes of
liability, we hold that the indictment was not constructively amended.

Conspiracy under § 846 does not proscribe the possession or distri-
bution of particular drugs by itself but rather must be charged in con-
junction with another statutory provision,2 in this case,
§ 841(b)(1)(A). Section 841(b)(1)(A) proscribes "cocaine, its salts,
optical and geometric isomers, and salts of isomers."3 It is undisputed
_________________________________________________________________
2 Section 846 reads:

           Any person who attempts or conspires to commit any offense
          defined in this subchapter shall be subject to the same penalties
          as those prescribed for the offense, the commission of which was
          the object of the attempt or conspiracy.

21 U.S.C.A. § 846 (West 1981 & Supp. 1999).
3 Section 841(b)(1)(A) reads in relevant part:

           (b) Penalties

           Except as otherwise provided in section 859, 860, or 861 of
          this title, any person who violates subsection (a) of this section
          shall be sentenced as follows:

          (1)(A) In the case of a violation of subsection (a) of this sec-
          tion involving--

***

           (ii) 5 kilograms or more of a mixture or substance contain-
          ing a detectable amount of--

                     8
that § 841 criminalizes both powder and crack cocaine. Conspiracy
under §§ 841(b)(1)(A) and 846 only requires proof of some controlled
substance under § 841 and not proof of a particular substance for pur-
poses of liability.4 The disparity between cocaine powder and crack
_________________________________________________________________

           (I) coca leaves, except coca leaves and extracts of coca
         leaves from which cocaine, ecgonine, and derivatives of
         ecgonine or their salts have been removed;

          (II) cocaine, its salts, optical and geometric isomers,
         and salts of isomers;

          (III) ecgonine, its derivatives, their salts, isomers, and
         salts of isomers; or

           (IV) any compound, mixture, or preparation which con-
         tains any quantity of any of the substances referred to
         in subclauses (I) through (III);

          (iii) 50 grams or more of a mixture or substance described
         in clause (ii) which contains cocaine base;

***

          such person shall be sentenced to a term of imprisonment
         which may not be less than 10 years or more than life and
         if death or serious bodily injury results from the use of
         such substance shall be not less than 20 years or more than
         life, a fine not to exceed the greater of that authorized in
         accordance with the provisions of Title 18, or $4,000,000
         if the defendant is an individual or $10,000,000 if the
         defendant is other than an individual, or both.

21 U.S.C.A. § 846 (West 1981 & Supp. 1994).

4 See Edwards v. United States , 118 S.Ct. 1475, 1477 (1998) (holding
that the determination of the identity and amount of controlled substance
under §§ 841(b)(1)(A) and 846 is for the judge at sentencing and not the
jury at trial); United States v. Rutherford, No. 96-4520, 1999 WL
300783, at *6; 1999 U.S. App. LEXIS 9038, at *19 (11th Cir. May 13,
1999) (holding that there was no constructive amendment where a
§§ 841(b)(1)(A) and 846 indictment charged an offense involving "co-
caine" and the proof at trial and jury instructions referred to crack
cocaine); United States v. Mejia, 97 F.3d 1391, 1392-93 (11th Cir. 1996)
(proof of §§ 841(b)(1)(A) and 846 conspiracy does not require proof of

                    9
in the indictment, evidence at trial, and jury instructions was irrele-
vant for the purposes of liability because both powder and crack
cocaine are controlled substances under § 841(b)(1)(A). Conspiracy
under § 846 does not distinguish between powder or crack cocaine for
liability. The technical change of Peaks' indictment, therefore, was
not a constructive amendment.

IV.

Even if an indictment is not constructively amended, there still may
be a variance between the offense charged in the indictment and the
proof offered at trial. See United States v. Ford, 88 F.3d 1350, 1360
(4th Cir. 1996). Whereas constructive amendment is largely a ques-
tion of law (focusing upon the elements of the offenses charged and
proved), variance is largely a question of fact (focusing upon the
actual evidence presented at trial). Unlike a constructive amendment,
a variance does not legally amend the terms of the indictment or mod-
ify an essential element of the charged offense, but rather occurs
when facts are proven at trial materially differently than those alleged
in the indictment.

A variance is "fatal," requiring reversal, only upon a showing of
prejudice. A variance is prejudicial if there is either (1) a lack of
notice in violation of the Sixth Amendment where"the indictment
does not fairly appraise the defendant as to the charges," or (2) a Fifth
Amendment double jeopardy violation where "the defendant is not
protected from subsequent prosecutions for the same crime." United
States v. Schnabel, 939 F.2d 197, 203 (4th Cir. 1991), citing Miller,
471 U.S. at 134-35.

Because Peaks failed to establish any prejudice, we need not
address the question of whether an actual variance occurred. Peaks
_________________________________________________________________
the particular substance involved, only that some controlled substance
was involved); United States v. Patterson, 38 F.3d 139, 143-44 (4th Cir.
1994) (observing that § 841(b)(1)(A) is a"sentencing enhancement pro-
vision" and not a necessary element of liability); United States v. Gomez,
905 F.2d 1513, 1514 (11th Cir. 1990) (holding that a defendant need not
be found to know the particular drug involved in order to receive a man-
datory sentence based on the kind of drug under§ 841(b)(1)).

                     10
did not suffer any prejudicial lack of notice because his trial strategy,
impeaching the credibility of the government's "flipper" witnesses,
was not dependent upon the identity of the substance charged. More-
over, there is no risk of any prejudicial double jeopardy. We hold,
therefore, that there was no prejudicial variance.

V.

Finally, Peaks argued that the district court erred in attributing
623.7 grams of cocaine to him at sentencing because the amount was
not within the "scope of his agreement" with Allen. We conclude that
the district court's calculations of the relevant drug quantities were
not clearly erroneous.

At sentencing, the government need only prove relevant drug quan-
tities by a preponderance of the evidence. See United States v.
Engelman, 916 F.2d 182, 184 (4th Cir. 1990). In a drug conspiracy,
a defendant will be held accountable for a co-conspirator's drugs if
the drugs were within the scope of their agreement and reasonably
foreseeable to the defendant. See United States v. Irvin, 2 F.3d 72, 77
(4th Cir. 1993). It is within the power of the sentencing judge to
approximate the relevant quantity of narcotics when the drugs seized
are not an accurate indicator of the scope of an ongoing conspiracy,
or when no drugs are in fact seized. See United States v. D'Anjou, 16
F.3d 604, 614 (4th Cir. 1994).

A review of the evidence in the instant case suggests that the dis-
trict court's calculation of the drugs attributable to Peaks was not
clearly erroneous. The district court carefully calculated the quantities
of drugs involved. The court not only addressed each and every one
of counsel's objections, but also made independent inquiries as well.
The court carefully read over the entire record twice and had made
detailed notes. In one instance, the district court discounted the gov-
ernment's cross-examination of Kearney and reduced the amount
from 30-35 ounces to 22 ounces. When asked whether he was satis-
fied with the final calculations, Peaks' counsel replied that he was sat-
isfied. Given the deferential scope of our review, we find no error in
the district court's calculations.

                     11
VI.

Finding no error in the proceedings below, we affirm the judgment
and sentencing of the district court with regard to defendant Peaks. As
previously discussed, this case is remanded to the district court to
vacate the judgment and dismiss the indictment with regard to defen-
dant Allen.

AFFIRMED IN PART AND REMANDED IN PART

                    12
