                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4058



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


HENRY PAUL RICHARDSON, a/k/a Packer,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:06-cr-00106-HEH)


Submitted:   April 9, 2008                    Decided:   May 9, 2008


Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. James Roos, III, LAW OFFICES OF J. JAMES ROOS, III, Towson,
Maryland, for Appellant. Chuck Rosenberg, United States Attorney,
Roderick C. Young, Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Henry Paul Richardson appeals his convictions following

a jury trial for conspiracy to distribute heroin, in violation of

21 U.S.C. § 846 (2000) (Count One); possession of a firearm in

furtherance of a drug trafficking offense, in violation of 18

U.S.C. § 924(c) (2000) (Count Two); and possession of a firearm in

furtherance of a drug trafficking offense causing the death of

another, in violation of 18 U.S.C. § 924(j) (2000) (Count Three).

Finding no reversible error, we affirm.



            I.   Sufficiency of the Evidence

            Richardson first contends there was insufficient evidence

to support his convictions.           This court reviews de novo the

district   court’s   decision    to   deny   a   motion   for   judgment   of

acquittal pursuant to Fed. R. Crim. P. 29.                United States v.

Osborne, 514 F.3d 377, 385 (4th Cir. 2008).           Where, as here, the

motion was based on a claim of insufficient evidence, “[t]he

verdict of the jury must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

support it.”     Glasser v. United States, 315 U.S. 60, 80 (1942);

Osborne, 514 F.3d at 385.       Substantial evidence is evidence “that

a reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”    United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)


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(en   banc).     This       court   considers     circumstantial      and    direct

evidence, and allows the government the benefit of all reasonable

inferences from the facts proven to those sought to be established.

Id. at 858; United States v. Tresvant, 677 F.2d 1018, 1021 (4th

Cir. 1982).

           In resolving issues of substantial evidence, this court

does not weigh evidence or review witness credibility.                       United

States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).                Rather, it is

the role of the jury to judge the credibility of witnesses, resolve

conflicts in testimony, and weigh the evidence.                  United States v.

Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).

           First, as to Richardson’s conspiracy conviction, “[t]o

establish a § 846 violation, the government would have to prove (1)

that [Richardson] entered into an agreement with one or more

persons to engage in conduct that violated 21 U.S.C. §[] 841(a)(1)

. . .; (2) that [he] had knowledge of that conspiracy; and (3) that

[he] knowingly and voluntarily participated in the conspiracy.”

United States v. Mastrapa, 509 F.3d 652, 657 (4th Cir. 2007);

Burgos,   94   F.3d    at    857.     Testimony    at    trial    disclosed    that

Richardson     began   selling      heroin   in   the   Gilpin    Court     area   of

Richmond, Virginia in the summer of 2005.               He had a lieutenant who

controlled the flow of traffic where he sold drugs, in his second

floor apartment on St. John Street, and acted as a lookout for

police.   Ricky Scott testified he would sometimes make purchases


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directly from Richardson; other times Richardson had runners to

complete the transactions.               Henry Williams testified that in

addition to purchasing heroin from Richardson, he distributed

heroin    for    Richardson      in    exchange      for   money     or    heroin.     In

addition,       Williams   testified          that    he    brought       customers    to

Richardson to purchase heroin.                Williams cooperated with the FBI

and completed a controlled buy of heroin from Richardson, which was

captured on audio and video recording and played for the jury.

After Richardson was arrested, a search of his vehicle recovered

7.1 grams of heroin.            We find there was substantial evidence to

support the conviction for conspiracy to distribute heroin.

               Turning   next    to    Richardson’s        firearm      convictions,    a

violation of § 924(c)(1) requires proof the defendant used or

carried a firearm during and in relation to a drug trafficking

crime or possessed a firearm in furtherance of a drug trafficking

crime.    United States v. Lipford, 203 F.3d 259, 265-66 (4th Cir.

2000) (noting elements under § 924(c) statute for use or carry).

Proof    of    the   underlying       crime   is     necessary     to     convict    under

§ 924(c).       United States v. Hopkins, 310 F.3d 145, 153 (4th Cir.

2002).        It is sufficient to establish that the purpose of the

firearm was to “protect or embolden” the defendant.                       United States

v. Sullivan, 455 F.3d 248, 260 (4th Cir. 2006).                            Even without

evidence of brandishing or firing of a weapon, the carrying of a

firearm during a drug trafficking crime supports the jury’s finding


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that a defendant carried it for his personal protection, thus

satisfying the applicable standard.        Id.

          Under   §    924(j)(1),    Richardson’s        third     count    of

conviction, “[a] person who, in the course of a violation of

[§ 924(c)], causes the death of a person through the use of a

firearm, shall . . . if the killing is murder (as defined in

section 1111) be punished by death or by imprisonment for any term

of years or for life.”   18 U.S.C. 924(j)(1) (2000).        The jury found

the killing committed by Richardson in the course of the § 924(c)

violation was a murder as defined by 18 U.S.C. § 1111 (2000).

          Richardson     first   argues        that   because     there     was

insufficient evidence to establish the underlying conspiracy to

distribute   heroin   offense,   there    is    insufficient     evidence   to

support that he possessed a firearm in furtherance of that crime.

Because we find there was sufficient evidence to support the

conspiracy conviction, Richardson’s claim fails.

          We find there was ample evidence at trial to support

Richardson’s convictions for possession of a firearm in furtherance

of drug trafficking and possession of a firearm in furtherance of

drug trafficking causing death.          Sylvester Washington and Henry

Williams testified that Richardson carried a firearm during their

drug transactions with him.       Ricky Scott testified that on the

night of February 14, 2006, he witnessed Richardson, carrying an

AK-47, get into a van with other individuals Scott did not know.


                                 - 5 -
Sylvester Washington testified that on that same night, he was

standing with Freeman Brown on the corner of St. Paul and Coutts

Streets in Richmond, Virginia, when a van stopped and Richardson

exited the van with an AK-47.       Washington testified Richardson

opened fire as Washington ran away.       Washington was shot several

times and fell to the ground.           Washington survived, but was

seriously injured.     Freeman Brown was killed.       At the scene,

forensic detectives recovered 29 cartridge cases from two different

AK-47 weapons.   To the extent Richardson attempts to undermine the

strength of this evidence by challenging witness credibility, this

court does not weigh evidence or substitute its view of witness

credibility for determinations made by the jury. See Saunders, 886

F.2d at 60.



          II.    Admission of Evidence

          Richardson next argues that the district court erred in

admitting drug evidence seized from the third search of his vehicle

by law enforcement officials eighteen days after his arrest while

the vehicle was impounded.    Richardson did not file a motion to

suppress evidence prior to trial.

          Rule 12(b)(3) of the Federal Rules of Criminal Procedure

requires motions to suppress evidence be made before trial. United

States v. Wilson, 115 F.3d 1185, 1190 (4th Cir. 1997).     Failure to

make a motion to suppress before trial constitutes waiver unless


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the trial court grants relief from the waiver under Rule 12(e) for

cause shown.      Fed. R. Crim. P. 12(e); United States v. Ricco, 52

F.3d 58, 62 (4th Cir. 1995).          Richardson therefore must show cause

for his failure to file a pretrial motion to suppress.                       Because

Richardson failed to raise the issue of suppression based on

invalid search prior to or during trial, and he does not allege

cause for his failure to do so, we find he has waived his right to

raise the issue on appeal.



              III. Constructive Amendment

              Richardson’s    final      argument      on   appeal     is   that   the

district court constructively amended Count One of the indictment,

which charged conspiracy to distribute heroin, by instructing the

jury that the agreement could be to distribute or possess with

intent to distribute heroin, although Richardson had not been

charged with possession with intent to distribute.

              Constructive amendments are error per se and “must be

corrected on appeal even when not preserved by objection.”                    United

States   v.    Floresca,     38   F.3d    706,   714    (4th    Cir.    1994).*      A

constructive amendment broadens the bases for conviction beyond

those charged in the indictment.              United States v. Randall, 171

F.3d 195, 203 (4th Cir. 1999).            It occurs when “the indictment is



     *
      Richardson failed to raise                 the    issue   of     constructive
amendment in the district court.

                                      - 7 -
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.   (quoting   United     States    v.

Schnabel, 939 F.2d 197, 203 (4th Cir. 1991)).

            We find Richardson, as a conspirator, is criminally

responsible for all parts of the conspiracy--possession with intent

to   distribute      as    well   as    distribution--and       thus   he    was    not

prejudiced     by    the    court’s     instruction     to    the   jury    that    the

conspiratorial agreement could be to distribute or possess with

intent to distribute heroin.             See United States v. Diaz, 190 F.3d

1247, 1253 (11th Cir. 1999) (“In a conspiracy . . . neither actual

possession nor actual distribution is a necessary element of the

crime.    Only an agreement is necessary.               A fundamental precept of

the law of conspiracy converts any distinction between conspiracies

to commit these two crimes into a non-issue: each conspirator is

criminally     responsible        for    all    parts    of   the   conspiracy.”).

Therefore, the district court did not impermissibly broaden the

charges such that Richardson was convicted of a crime other than

that charged.

            Accordingly, we deny Richardson’s motion to file a pro se

supplemental brief and affirm the district court’s judgment.                        We

dispense with oral argument because the facts and legal contentions




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are adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                      AFFIRMED




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