UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4598

DARYL EDWARD FITZGERALD,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-96-39)

Submitted: January 23, 1997

Decided: February 5, 1997

Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

J. Thomas Love, Jr., Charlottesville, Virginia, for Appellant. Robert
P. Crouch, Jr., United States Attorney, Jean B. Hudson, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________
OPINION

PER CURIAM:

Daryl Fitzgerald appeals from the district court's order affirming
the magistrate judge's order convicting him of driving without a
license on National Forest property, 36 C.F.R. § 261.13(a) (1995),
and sentencing him to six months incarceration.* We affirm.

On December 9, 1995, Fitzgerald was charged by a National Forest
Service Ranger with three violations: (1) operating a motor vehicle
without a valid driver's license, (2) operating a motor vehicle in a
careless/reckless manner, and (3) possession of alcohol on federal
land. The magistrate judge granted Fitzgerald's motion for acquittal
as to the second and third charges. Fitzgerald was convicted of the
first charge and sentenced to six months imprisonment.

Fitzgerald claims first that the magistrate judge erred by amending
the violation notice after the government had presented its case. The
violation notice issued to Fitzgerald stated that he was charged with
driving without a license and cited 36 C.F.R. § 261.54(d) (1995)
(which prohibits the operation of a vehicle on national forest property
in violation of posted order regarding speed, load, weight, height,
length, width, or other limitation). The government moved to amend
the notice to cite to 36 C.F.R. § 261.13(a) (which prohibits operation
of a vehicle without a valid driver's license). Because Fitzgerald was
on notice of the charge against him and the evidence relevant to that
charge was presented at his trial, he was not prejudiced by the amend-
ment of the violation notice. See, e.g., United States v. Bledsoe, 898
F.2d 430 (4th Cir. 1990) (allowing amendment of indictment where
it does not change essential or material element of charge so as to
cause prejudice to the defendant). Moreover, Fed. R. Crim. P. 7(e)
provides that "[t]he court may permit an information to be amended
at any time before verdict or finding if no additional or different
offense is charged and if substantial rights of the defendant are not
prejudiced."
_________________________________________________________________
*Fitzgerald consented to trial before a magistrate judge pursuant to 28
U.S.C. § 636(c)(1994).

                    2
Fitzgerald also claims that the magistrate judge abused his discre-
tion by sentencing him to six months imprisonment. This court will
not disturb a sentence within the statutory limits except in extraordi-
nary circumstances. United States v. Schocket , 753 F.2d 336, 341 (4th
Cir. 1985). Fitzgerald's sentence was within the statutory limit and we
find no extraordinary circumstances present here. Accordingly, we
affirm. 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

                    3
