UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4078

WILLIAM HENRY COLEMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Terrence W. Boyle, Chief District Judge.
(CR-96-10)

Submitted: February 26, 1999

Decided: March 18, 1999

Before HAMILTON and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Norman Butler, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Brian Lee Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

William Henry Coleman appeals his conviction for a violation of
18 U.S.C. § 922(g) (1994). After Coleman was arrested on a state
warrant for murder, the grand jury returned a single count indictment
charging Coleman with possession of a Ruger 9 millimeter semi-
automatic pistol and a prior conviction of a felony. Before trial, a
magistrate judge recommended that Coleman's motion to suppress the
firearm that officers found in his vehicle when they arrested him be
denied. The Government informed Coleman and the district court that
Coleman was eligible for sentencing as an armed career criminal
under the provisions of 18 U.S.C. § 924(e) (1994). In doing so, the
Government specified three predicate offenses it claimed qualified as
violent felonies or serious drug offenses. See 18 U.S.C. § 924(e)(2).

After the jury convicted Coleman, the district court determined that
Coleman was an armed career criminal as defined by the statute and
sentenced him to 210 months imprisonment. Coleman appeals his
conviction and sentence. In this appeal, Coleman claims that there
was error at virtually every stage of his indictment, trial, and sentenc-
ing. Finding no merit to any of his contentions, we affirm.

In attempting to attack his conviction, Coleman first challenges the
indictment returned against him by the grand jury. Coleman argues
that the Government and district court improperly amended the indict-
ment. In doing so, Coleman correctly notes that the indictment specif-
ically charged that he had previously been convicted of "Felonious
Possession with Intent to Distribute Cocaine." When the district court
discovered that Coleman had actually been convicted of felonious
possession of cocaine, the court amended the indictment to conform
to the evidence produced at trial. Generally speaking, an amendment
to an indictment which changes the offense charged is error per se and
must be corrected on appeal, even in the absence of an objection. See
United States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc).
However, an amendment may stand if it does not change the essential
or material elements of the charge so as to cause prejudice to the
defendant. See United States v. Schnabel, 939 F.2d 197, 203 (4th Cir.
1991).

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In this case, none of the elements of the charge were altered. The
only amendment Coleman complains of is a correction of the descrip-
tion of the predicate state felony. Rather than changing an element of
the offense, the amendment merely affected the evidence by which
the Government proved one of the elements. See Old Chief v. United
States, 519 U.S. 172, 186 (1997). Coleman does not suggest how this
technical amendment prejudiced him. The indictment noted the cor-
rect date of conviction and the correct jurisdiction despite incorrectly
naming the offense. Coleman does not allege that he would have been
able to show that he was not guilty of the predicate offense if it had
been more specifically identified in the original indictment. As a
result, there was no reversible error in the district court's amendment
of the indictment.

Coleman next contends that the district court erred in denying his
pre-trial motion to suppress both the pistol and his statements which
led to the discovery of the pistol. Coleman claims that his rights
against self-incrimination under the Fifth Amendment were violated
when the arresting officers asked him whether he had a gun in the car
he was driving. The officers questioned Coleman about the gun prior
to informing him of his rights as described in Miranda v. Arizona, 384
U.S. 436 (1966). The magistrate judge recommended that the district
court allow the pistol and statements under the public safety exception
to the mandate of Miranda. See New York v. Quarles, 467 U.S. 649,
657 (1984). Coleman argues that the exception should not have
applied in this circumstance because he was already secured in the
officers' vehicle. The district court accepted the recommendation of
the magistrate judge and admitted the evidence over Coleman's
objection.

It is well-settled that the public safety exception is grounded in law
enforcement officials' ability to "distinguish almost instinctively
between questions necessary to secure their own safety or the safety
of the public and questions designed solely to elicit testimonial evi-
dence from a suspect." Id. at 658-59. In this case, the officers arrested
Coleman, a murder suspect with a history of violence, in a public
area. Within a few minutes, there were a number of spectators close
at hand. In addition, the arresting officers needed to move Coleman's
vehicle to a safer location and planned to have it impounded. The
officers' questions regarding the presence of a gun stemmed from

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their concern for safety and to neutralize a potentially dangerous situ-
ation. See United States v. Brady, 819 F.2d 884, 888 (9th Cir. 1987).
The district court did not err in accepting the report and recommenda-
tion of the magistrate judge and admitting the evidence under public
safety exception to the Miranda warning requirement.

Coleman next complains that during discovery, the Government
did not provide him with the grand jury testimony of one of the arrest-
ing officers who eventually testified at trial, Agent Martinez. Cole-
man contends that this omission constituted a Jencks Act violation.
The Jencks Act provides that the Government is only required to pro-
duce requested materials "[a]fter a witness called by the United States
has testified on direct examination." 18 U.S.C.§ 3500(b); see United
States v. White, 750 F.2d 726, 729 (8th Cir. 1984) ("Although in
many cases the government freely discloses Jencks Act material to the
defense in advance of trial, the government may not be required to do
so."). Furthermore, an order to produce the material should be made
"on motion of the defendant." 18 U.S.C. § 3500(b). Because there was
no such motion in this case, the Government was not required to pro-
duce the grand jury transcripts in question. Moreover, even if we were
to conclude that there was a violation, notwithstanding Coleman's
failure to make an appropriate motion, he has not shown that the error
was anything other than harmless. See United States v. Lewis, 35 F.3d
148, 152 (4th Cir. 1994).

Moving to his trial, Coleman next asserts that there was insufficient
evidence to convict him of a violation of 18 U.S.C.§ 922(g). Specifi-
cally, Coleman claims that the Government failed to prove that his
civil rights, among them his right to possess a firearm, had not been
restored. Relying on United States v. Essick, 935 F.2d 28, 31 (4th Cir.
1991), Coleman correctly notes that in some § 922(g) prosecutions in
North Carolina, the Government must demonstrate that the defendant
possessed a firearm within five years of release from supervision. See
id. In other words, in some circumstances, the Government must
show that it is entitled to the assumption of the continued vitality of
the prior conviction and that the conviction is not"so removed in
time" that North Carolina would have ordinarily restored a defen-
dant's civil rights. See United States v. Thomas , 52 F.3d 82, 85 (4th
Cir. 1995). However, this court clarified that "the holding in Essick
is limited to circumstances where the underlying North Carolina fel-

                    4
ony conviction occurred more than five years prior to defendant's
firearm possession." Id. In this case, Coleman was arrested for posses-
sion of a firearm approximately two years after his conviction for the
predicate offense. Under North Carolina law, Coleman's civil rights
could not ordinarily have been restored. Consequently, the Govern-
ment did not bear "the burden of proving independently the addition
fact that [Coleman's] civil rights had not been restored." Id. Cole-
man's suggestion that the Government was required to do so is with-
out merit.

Despite his failure to object to the jury instructions in any manner,
Coleman contends that the district court misdefined reasonable doubt.
Ordinarily, Coleman's failure to object would preclude his challenge
on appeal of an allegedly inappropriate jury instruction absent plain
error. See United States v. Rogers, 18 F.3d 265, 268 (4th Cir. 1994).
However, if the court charged the jury with a constitutionally defi-
cient reasonable doubt instruction, it amounts to"structural error"
which is not subject to harmless error analysis. See Sullivan v.
Louisiana, 508 U.S. 275, 281-82 (1993). The proper inquiry in
reviewing this instruction is whether there is a reasonable likelihood
that the jury applied the reasonable doubt standard in an unconstitu-
tional manner. See Victor v. Nebraska, 511 U.S. 1, 6 (1994). On
appeal, Coleman contends only that the district court "lessened" the
Government's burden of proof by overemphasizing its definition of
reasonable doubt and stating that the Government was not required to
prove Coleman guilty beyond all possible doubt. Because the district
court's instruction was virtually identical to the instruction we
recently approved in United States v. Williams , 152 F.3d 294, 297-98
(4th Cir. 1998), we find that there is no risk that the jury misapplied
the reasonable doubt standard.

Coleman also contends that the district court misled the jury into
believing that possession with intent to distribute cocaine remained
the predicate offense to the § 922(g) conviction even after the amend-
ment of the indictment. Coleman suggests that the district court preju-
diced his defense by convincing the jury that Coleman had been
convicted of possession with intent to distribute. There was no plain
error in the district court's oblique but mistaken reference to the
offense listed in the unamended indictment. See Rogers, 18 F.3d at
268. The court correctly instructed the jury that they must find

                    5
whether Coleman had previously been convicted of a felony. See Old
Chief, 519 U.S. at 186. The district court did not specifically mention
offense that was incorrectly included in the indictment. As a result,
there was no reversible error in the jury instructions.

Coleman makes several assignments of error regarding his sen-
tence. In attacking the district court's determination that he was sub-
ject to an enhanced sentence as an armed career criminal pursuant to
18 U.S.C. § 924(e), Coleman first complains that it was impermissible
for the Government to substitute an additional offense for an offense
specified on the notice he received informing him of the applicability
of the armed career criminal statute. The Government asked the dis-
trict court to consider a store larceny conviction rather than a cocaine
possession conviction when it was discovered that the possession con-
viction did not qualify as a predicate offense under§ 924(e). Coleman
contends without support that § 924(e) notice from the Government
must refer to specific offenses and may not be altered without notice.
However, when a defendant's sentence is subject to enhancement
because he is an armed career criminal under the guidelines, due pro-
cess does not require notice. See United States v. McDougherty, 920
F.2d 569, 575 (9th Cir. 1990).

Indeed, in United States v. Johnson, 973 F.2d 857, 860 (10th Cir.
1992), the Tenth Circuit, noting the compulsory"shall" used in
§ 924(e)(1), stated that if it comes to the court's attention that the
defendant meets the requirements of the subsection,"[t]he sentencing
court may invoke the enhancement sua sponte without a request by
the government." Id. Other courts have more specifically addressed
the notice issue as it pertains to specific prior convictions. See, e.g.,
United States v. Mauldin, 109 F.3d 1159, 1162-63 (6th Cir. 1997)
("[Defendant] contends that the government should be bound by its
original notice [which incorrectly listed a prior conviction as carrying
a maximum term of only six years]. The government correctly points
out that the ACCA does not require notice prior to enhancement.");
United States v. Gibson, 64 F.3d 617, 626 (11th Cir. 1995) (holding
that defendant "received reasonable notice of his prior convictions
and an opportunity to challenge them to satisfy due process" where
"[a]lthough the government listed only one prior conviction in the
indictment . . . the government filed a response to the district court's
standing discovery order prior to sentencing" which "included a print-

                     6
out of [defendant's] prior criminal history and copies of each informa-
tion and judgment filed in state court relating to three of [defendant's]
prior state convictions"); United States v. Alvarez, 972 F.2d 1000,
1006 (9th Cir. 1992) ("We . . . find no support for the contention that
the predicate felonies must be alleged in some formal notice plead-
ing."). Coleman's due process rights are satisfied if the Government
meets its burden to prove the predicate felonies by a preponderance
of the evidence; McDougherty, 920 F.2d at 575, a fact which Cole-
man has never challenged. Moreover, Coleman had actual notice of
the predicate offenses relied on by the Government in that his entire
criminal history was set forth in his presentence report and delivered
to him five months before sentencing. Coleman's challenge is without
merit.

Coleman next contends that the district court abused its discretion
in declining to grant a continuance after substituting the store larceny
conviction for the felony possession conviction. Assuming without
deciding that Coleman did not abandon his request for a continuance,
as the Government suggests, we find that there was no error in the
district court's decision to proceed with sentencing despite Coleman's
initial request for a continuance. Without showing both that the dis-
trict court's denial of a continuance was arbitrary and that it substan-
tially impaired Coleman's opportunity to obtain a fair sentence, this
court will not vacate a sentence because the district court denied the
continuance. See United States v. Speed, 53 F.3d 643, 645 (4th Cir.
1995). Coleman contends that he was prejudiced because the denial
of the continuance deprived him of the opportunity to investigate the
validity of the third felony relied upon by the Government to prove
that Coleman was an armed career criminal. Aside from the fact that
Coleman did not pursue this claim before the district court, Coleman
is not permitted to attempt a collateral attack at sentencing on the
validity of the predicate conviction used for sentencing under
§ 924(e). See Custis v. United States, 511 U.S. 485, 492 (1994).
Because Coleman has not shown substantial impairment of his oppor-
tunity to secure a fair sentence, and in the absence of any evidence
that the court's decision was arbitrary, we find no error in the district
court's decision to proceed with sentencing.

Finally, Coleman claims that one of the three offenses that the dis-
trict court included as predicate offenses for Coleman's armed career

                     7
criminal status was an offense for which he had his civil rights
restored. As a result, contends Coleman, the offense should not have
been included. See 18 U.S.C. § 921(a)(20) (1994); United States v.
Hassan-El, 5 F.3d 726, 733 (4th Cir. 1993). Specifically, Coleman
disputes the district court's conclusion that his arrest within five years
of his release from parole in 1988 on an 1984 voluntary manslaughter
conviction prevented the restoration of his civil rights with respect to
that conviction. Coleman contends that his civil rights were restored
automatically on October 1, 1993, five years after his release from the
voluntary manslaughter conviction. However, one month before that,
Coleman was arrested for possession of cocaine and convicted of that
offense in December of 1993. Although Coleman urges that the oper-
ative date should be the date of his conviction, more than five years
after his release, we have held that the operative date is that of the
commission of the next felony. See United States v. Clark, 993 F.2d
402, 405 (4th Cir. 1993). At the time of his arrest, before the five
years had expired, Coleman was in possession of cocaine, a firearm,
and cash. This constitutes the commission of a felony. As a result, the
district court did not err in concluding that Coleman's civil rights had
not been restored for the purposes of § 924(e) with respect to his vol-
untary manslaughter conviction.

Finding no merit to any of Coleman's assignments of error, we
affirm the conviction and sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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