                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                             Oct. 1, 2009
                             No. 08-13289                 THOMAS K. KAHN
                       ________________________               CLERK


                 D. C. Docket No. 06-00003-CR-1-JTC-3


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MICHAEL W. WHITE,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                             (October 1, 2009)

Before EDMONDSON, BIRCH and COX, Circuit Judges.
PER CURIAM:

      Defendant-Appellant Michael White appeals his conviction for operating a

chop shop in violation of 18 U.S.C. § 2322 and several related crimes. White

contends that (1) the district court erred by denying a mistrial after an investigator

arguably introduced character evidence during testimony; (2) a one-character

difference in a Vehicle Identification Number (VIN) listed in the indictment and

the proof offered at trial on that vehicle constituted a constructive amendment or

material variance; and (3) the district court erred in applying a three-level

enhancement to his base sentence. No reversible error has been shown; we affirm.

      First, White contends that a statement by the lead investigator during trial

created an impermissible character inference and warranted a mistrial. On direct

examination, the lead investigator in the case testified that White had admitted that

“Kevin Crews had got him back or got him into the stealing vehicles and switching

them out and stuff like that.” White asserts that the jury may have interpreted this

statement as a reference to past misconduct; the government maintains that the

statement was merely a slip of the tongue that was too ambiguous to be prejudicial

and, in any event, was immediately corrected. We will not disturb a district court’s

evidentiary determinations absent a clear abuse of discretion; whether or not to

grant a mistrial lies within the sound discretion of the district judge. United States



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v. Mendez, 117 F.3d 480, 484 (11th Cir. 1997). White has failed to demonstrate

that this fleeting and immediately corrected statement was prejudicial, especially

given the absence of argument and of other evidence suggesting that White

engaged in prior misconduct. To deny a mistrial was no abuse of the district

court’s considerable discretion.

       Second, the indictment charging White incorrectly stated one of the

seventeen characters in a VIN as a “W” instead of an “N.” White contends that

this typo resulted in an impermissible variance or a constructive amendment.

       [A]n amendment of the indictment occurs when the charging terms of the
       indictment are altered, either literally or in effect by the prosecutor or court
       after the grand jury has last passed upon them. A variance occurs when the
       charging terms of the indictment are left unaltered, but the evidence offered
       at trial proves facts materially different from those alleged in the indictment.

United States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990) (quoting United States

v. Salinas, 654 F.2d 319, 324 (5th Cir. 1981)) .

       [T]he proper distinction between an amendment and a variance is that an
       amendment occurs when the essential elements of the offense contained in
       the indictment are altered to broaden the possible bases for conviction
       beyond what is contained in the indictment. A variance occurs when the
       facts proved at trial deviate from the facts contained in the indictment but the
       essential elements of the offense are the same.

Id. at 634.

       We will only discuss the variance issue because White acknowledged that it

is his better argument, although we have considered the constructive amendment

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claim and reject it. The government concedes the existence of a variance. For a

variance to result in reversal, the variance must be material and the defendant must

have suffered substantial prejudice as a result. United States v. Caporale, 806 F.2d

1487, 1499 (11th Cir. 1986). In circumstances such as those here, substantial

prejudice occurs when the defendant is unfairly surprised and had an inadequate

opportunity to prepare his defense. Id. at 1500-01. Nothing in the record suggests

that White’s ability to prepare his defense was impaired. White was not unfairly

surprised because, as noted by the district court, the pretrial discovery materials set

out the correct VIN.

       Last, White contends that his sentence was improperly enhanced. While a

district court’s application of the Sentencing Guidelines is reviewed de novo, its

factual determinations are reviewed for clear error. United States v. Yeager, 331

F.3d 1216, 1224 (11th Cir. 2003). The Sentencing Guidelines allow for a three-

level enhancement if the “defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or more participants or

was otherwise extensive.” U.S. S ENTENCING G UIDELINES M ANUAL § 3B1.1(b)

(2007). The defendant need only supervise a single participant; and for the

purpose of determining the total number of participants, all criminally culpable

people (even if not convinced), including the defendant, are counted. See United



                                           4
States v. Holland, 22 F.3d 1040, 1045 (11th Cir. 1994). The record provides

adequate support for the district court’s conclusion that the criminal activity both

involved at least five people and was otherwise extensive.

      AFFIRMED.




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