                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-5142


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KENNETH LANE PEGRAM,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00100-JAB-1)


Submitted:   August 30, 2012             Decided:   September 14, 2012


Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James B. Craven, III, Durham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Winston-Salem, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

                Kenneth     Lane    Pegram       was     charged        in     a    superseding

indictment with possession of firearms by a convicted felon, 18

U.S.C. § 922(g)(1) (2006) (Count One); possession of ammunition

by    a    convicted       felon,       18    U.S.C.     §    922(g)(1)         (Count        Two);

possession with intent to distribute 55.87 grams of marijuana,

21 U.S.C. § 841(a)(1), (b)(1) (2006) (Count Three); and failure

to appear, 18 U.S.C. § 3146(a)(1) (2006) (Count Four).                                    He pled

guilty to Count Four, and a jury convicted him of the remaining

three offenses.           The district court subsequently dismissed Count

Two. Pegram was sentenced to 120 months’ imprisonment on Count

One, sixty months’ imprisonment, concurrent, on Count Three, and

twelve months’ imprisonment, concurrent, on Count Four.

                Pegram now appeals.            His attorney has filed a brief in

accordance       with     Anders     v.      California,       386      U.S.       738    (1967),

stating that there are no meritorious issues for appeal, but

questioning whether trial counsel was ineffective, whether there

was    prosecutorial        misconduct,         and    whether         there       was   judicial

bias      at   sentencing.          Pegram      has    filed       a   pro     se    brief,     as

supplemented, raising numerous issues.                       We affirm.



                                                I

                Pegram    does     not       challenge       his   conviction            on   Count

Four,     and    our     review    of    the    record       discloses       no     meritorious

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issues    for    appeal       with   respect        to   that     conviction.        The

transcript of the Fed. R. Crim. P. 11 hearing reveals that the

district court substantially complied with Rule 11.                        Further, as

the district court found, the plea was entered knowingly and

voluntarily, and there was a factual basis for the plea.



                                            II

               We find no merit to the issues raised in the Anders

brief.    We will not address the claim of ineffective assistance

of defense counsel because ineffectiveness does not conclusively

appear    on    the    face    of    the    record.         See   United    States    v.

Baldovinos,      434    F.3d    233,       239    (4th   Cir.     2006).      Pegram’s

contention      that    the    prosecutor         engaged    in    misconduct    lacks

merit: the brief cites no specific examples of misconduct, and

our review of the record discloses none.                        Finally, the record

does not demonstrate judicial bias at sentencing.



                                            III

               In his pro se brief, Pegram raises a wide array of

claims, none of which have merit.                   First, contrary to Pegram’s

assertion, the district court properly denied his Fed. R. Crim.

P.   29   motion      for   judgment       of     acquittal.       Pegram’s     primary

argument is that the evidence was insufficient to establish that

he possessed the truck inside which officers found four firearms

                                             3
and    a    quantity    of    marijuana.       The    evidence—including        the

presence in the truck of an eviction notice addressed to Pegram,

the testimony of Van Milton Cole and Archie Emory, and the tags

on    the   truck—demonstrates      Pegram’s   constructive        possession    of

the truck.

             The   parties      were   directed      to   submit    supplemental

briefing regarding a stipulation concerning Pegram’s status as a

convicted felon.            The indictment identified two felonies that

qualified     under    § 922(g)(1).        Pegram,   however,      stipulated    at

trial as to only one felony, a 1998 conviction for possession of

marijuana in jail.           The government conceded that, after United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), that

conviction does not qualify as a predicate felony.                    However, a

1994 conviction identified in the indictment does so qualify.

The 1994 conviction, however, was not stipulated to at trial.

             After reviewing the supplemental briefs, we conclude

that    there   was    no    reversible    error.     The   indictment    placed

Pegram on notice that the Government might use either the 1994

or the 1998 offense, or both, to establish his status.                  The fact

that the crime to which Pegram ultimately stipulated was not a

felony under Simmons does not, on plain error review, destroy

the validity of the stipulation when the 1994 crime does so

qualify.



                                          4
             With respect to Pegram’s remaining claims, our review

of the record discloses either no error or no plain error that

we will, in our discretion, recognize.                        We address only a few of

those   claims      and     do    so    very       briefly.       First,     the    court’s

instructions        to    the    jury    did       not    constructively         amend     the

indictment because time generally is not a material element of a

criminal offense, United States v. Stuckey, 220 F.3d 976, 982

(8th Cir. 2000), and Pegram was not, as he urges, tried on

charges     other    than    those      made       in   the    indictment.    See    United

States v. Floresca, 38 F.3d 708, 711 (4th Cir. 1994).                               Second,

taken as a whole, the circumstances surrounding Pegram’s initial

questioning at a bar do not establish that he was in custody.

Accordingly, it was not necessary that the police administer

warnings in accordance with Miranda v. Arizona, 384 U.S. 436

(1966).     Third, the removal of Pegram’s wife from the courtroom

did   not   violate       his    right    to       a    public   trial,    for     there    is

absolutely no evidence that the courtroom did not remain open to

the general public.              Fourth, no hearing under Remmer v. United

States, 347 U.S. 227 (1954), was required because the record

establishes that the court assured itself that there had been no

unauthorized communication between Pegram’s wife and any juror.




                                               5
                                            IV

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We    therefore       grant     the     motion   to    file    a    pro    se

supplemental       brief,    and       we   affirm    Pegram’s      convictions        and

sentence.        This Court requires that counsel inform Pegram, in

writing,    of    the   right     to    petition     the   Supreme    Court      of    the

United States for further review.                    If Pegram requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may move in this Court for

leave to withdraw from representation.                     Counsel’s motion must

state that a copy thereof was served on Pegram.                            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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