                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4344


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHRISTOPHER JAMES MILLS, a/k/a Christopher James Nichols,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     Glen E. Conrad, Chief
District Judge. (7:12-cr-00013-GEC-1)


Submitted:   January 31, 2014              Decided:   February 19, 2014


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


Affirmed by unpublished per curiam opinion.


Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant.     Timothy J. Heaphy, United States
Attorney, R. Andrew Bassford, Assistant United States Attorney,
Roanoke, Virginia; Mythili Raman, Assistant United States
Attorney, Denis J. McInerney, Thomas E. Booth, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Christopher    James       Mills       appeals    his     conviction       and

254-month sentence for conspiracy to distribute and possess with

intent    to    distribute    five        kilograms      or     more     of    cocaine,    in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (2012).                               On

appeal, Mills raises several arguments: that the district court

denied him a fair trial by denying his motion in limine and

permitting       evidence     concerning          a     home     invasion;        that    the

district court abused its discretion in denying his motions for

a mistrial and a new trial; that the evidence presented by the

Government       resulted     in      a     constructive          amendment        to     the

indictment; that his sentence is procedurally unreasonable; and

that     the     district     court       unconstitutionally              increased       his

statutory      mandatory     minimum       sentence.           Finding    no     reversible

error, we affirm.

               Mills first contends that the district court erred in

denying his motion in limine and permitting the Government to

present evidence pertaining to a home invasion, in violation of

Fed. R. Evid. 403 and 404(b).                   Even if we were to assume that

the    district     court     erroneously             admitted     the        evidence,   we

conclude that any such error was harmless.                       See United States v.

Abu Ali, 528 F.3d 210, 231 (4th Cir. 2008) (providing standard

of review).



                                            2
               Second, Mills contends that the district court erred

in denying his motions for a mistrial and for a new trial based

on the Government’s alleged prosecutorial misconduct.                            We review

claims    of    prosecutorial      misconduct         “to      determine     whether   the

conduct so infected the trial with unfairness as to make the

resulting conviction a denial of due process.”                         United States v.

Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (internal quotation

marks    omitted).          To    prevail       on    a     claim     of    prosecutorial

misconduct,      “the     defendant       must       show      that   the   prosecutor’s

remarks or conduct were improper and . . . that such remarks or

conduct prejudicially affected his substantial rights so as to

deprive him of a fair trial.”                   Id.       Upon review, we conclude

that    the    Government    did    not    engage         in   any    improper    conduct.

Thus, the district court did not abuse its discretion in denying

Mills’ motions for a mistrial or for a new trial.                             See United

States v. Robinson, 647 F.3d 941, 948 (4th Cir. 2010) (providing

standard of review for denial of motion for new trial); United

States v. Wallace, 515 F.3d 327, 330 (4th Cir. 2008) (providing

standard of review for motion for mistrial).

               Third, Mills contends that his conviction should be

overturned      because     the    Government         constructively         amended   the

indictment by introducing evidence of a home invasion and drug

activity involving drugs other than cocaine and dating back to



                                            3
the   1990s.       “[A]fter    an   indictment    has   been    returned[,]      its

charges may not be broadened through amendment except by the

grand jury itself.”           Stirone v. United States, 361 U.S. 212,

215-16 (1960).        “When the government, through its presentation

of evidence . . . 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.) (internal quotation

marks   and    citation      omitted),   cert.    denied,   133    S.    Ct.    2747

(2013); see United States v. Foster, 507 F.3d 233, 242 (4th Cir.

2007) (“When considering a constructive amendment claim, it is

the broadening of the bases for a defendant’s conviction that is

important      -   nothing     more.”)   (internal      quotation       marks    and

brackets omitted).           Constructive amendments are fatal “because

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.”                   Foster, 507

F.3d at 242 (internal quotation marks omitted).

              On review, we conclude that the Government’s evidence

did not amount to a constructive amendment to the indictment.

See United States v. Malloy, 568 F.3d 166, 177 (4th Cir. 2009)

(providing standard of review).              The brief mention of a home

invasion did not “create[] a substantial likelihood that [Mills]



                                         4
was    convicted       of    an    uncharged         offense.”       United      States    v.

Johnson, 719 F.3d 660, 668 (8th Cir. 2013) (internal quotation

marks     omitted).               Further,    we       conclude     that   evidence       of

transactions involving drugs other than powder cocaine did not

constructively amend the indictment, considering the continuous

nature     of      Mills’          drug      transactions         with     his     alleged

coconspirators.             See United States v. Dowdell, 595 F.3d 50, 68

(1st    Cir.    2010)       (stating      that       because   “§ 841(a)(1)      prohibits

distribution of any controlled substance regardless of type,”

“drug identity had no bearing on the substance of the charge”).

               Fourth,        Mills       contends         that     his    sentence        is

procedurally unreasonable because the district court sentenced

him to fourteen months more than the statutory mandatory minimum

sentence.       In reviewing a sentence, this court must first ensure

that     the    district          court    did       not   commit    any   “significant

procedural error,” such as failing to properly calculate the

applicable Guidelines range, failing to consider the 18 U.S.C.

§ 3553(a) (2012) factors, or failing to adequately explain the

sentence.       Gall v. United States, 552 U.S. 38, 51 (2007).                            The

district       court    is    not     required        to   “robotically    tick    through

§ 3553(a)’s every subsection.”                       United States v. Johnson, 445

F.3d 339, 345 (4th Cir. 2006).                         However, the district court

“must place on the record an ‘individualized assessment’ based



                                                 5
on     the    particular          facts       of       the     case     before       it.         This

individualized assessment need not be elaborate or lengthy, but

it must provide a rationale tailored to the particular case at

hand    and     adequate         to    permit       ‘meaningful         appellate         review.’”

United       States      v.    Carter,       564    F.3d      325,     330    (4th       Cir.   2009)

(quoting Gall, 552 U.S. at 50) (internal citation and footnote

omitted)).           On    review,       we    conclude        that     the       district      court

committed       no      procedural       error         and,    thus,    did       not    abuse    its

discretion         in     imposing      the    within-Guidelines              sentence.          See

United States v. Lynn, 592 F.3d 572, 576, 578 (4th Cir. 2010)

(providing standard of review).

               Finally,         Mills        contends         that     the        district      court

violated       the       Fifth        Amendment         by    increasing           his    statutory

mandatory minimum sentence from ten years to twenty years based

on his prior drug conviction, where that conviction was neither

charged       in   the        indictment      nor      submitted       to     a    jury.        Mills

essentially          challenges        the    viability         of     Almendarez-Torres           v.

United States, 523 U.S. 224 (1998), in light of the Supreme

Court’s recent decision in Alleyne v. United States, 133 S. Ct.

2151 (2013).            Mills’ challenge fails, however, because we remain

“bound by Almendarez-Torres unless and until the Supreme Court

says otherwise,” which it has not.                           United States v. Graham, 711

F.3d 445, 455 (4th Cir. 2013); see also Alleyne, 133 S. Ct. at



                                                   6
2060 n.1 (2013); United States v. Cheek, 415 F.3d 349, 354 (4th

Cir. 2005).

           Accordingly, we affirm the district court’s judgment.

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 the decisional process.



                                                                   AFFIRMED




                                     7
