                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-5231


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MATTHEW JAMES RUSSO,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.    Robert E. Payne, Senior
District Judge. (3:09-cr-00191-REP-1)


Submitted:   December 30, 2010             Decided:   January 21, 2011


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


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Carolyn V.
Grady, Assistant Federal Public Defender, Richmond, Virginia,
for Appellant. Neil H. MacBride, United States Attorney, Samuel
E. Fishel, Special Assistant United States Attorney, Richmond,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Matthew       Russo    appeals        his   conviction            for     knowingly

attempting to receive material containing child pornography, in

violation    of    18    U.S.C.     § 2252A(a)(2)(B).                   On    appeal,        Russo

contends    that    the    evidence       was      insufficient              to    support       his

conviction and that the district court constructively amended

the indictment by allowing the Government to broaden the bases

for conviction beyond those contained in the indictment.                                          We

affirm.

            Russo       first     questions         whether            the        evidence       was

sufficient    to    support       his    conviction          of    attempt          to    receive

material    containing      child       pornography.              In    particular,          Russo

argues that the Government failed to demonstrate that he took a

substantial step necessary to commit the offense.

     The standard of review in criminal cases where the
     district court sits in judgment without a jury is
     well-settled.   We review findings on factual issues
     other than the ultimate issue of guilt using the
     clearly erroneous test.     On the ultimate issue of
     guilt, we review the district court’s finding to
     determine if it is supported by substantial evidence.

United States v. Lockhart, 382 F.3d 447, 451 (4th Cir. 2004).

In   determining         whether        the       evidence        in     the        record        is

substantial, this Court views the evidence in the light most

favorable    to    the    Government,         and    inquires           whether          there    is

evidence    that    a    reasonable       finder        of   fact        could       accept       as

adequate and sufficient to establish a defendant’s guilt beyond

                                              2
a reasonable doubt.            United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc).

              In order to prove the charged offense, the Government

needed   to     establish          beyond   a    reasonable       doubt   that   Russo

attempted      to     knowingly        receive     material       containing     child

pornography.        See 18 U.S.C. § 2252A(a)(2)(B).               In order to prove

an attempt, the Government must demonstrate that

     (1) the defendant had the requisite intent to commit a
     crime; (2) the defendant undertook a direct act in a
     course of conduct planned to culminate in his
     commission of the crime; (3) the act was substantial,
     in   that  it   was  strongly  corroborative   of  the
     defendant's criminal purpose; and (4) the act fell
     short of the commission of the intended crime due to
     intervening circumstances.

United   States       v.    Pratt,    351   F.3d   131,     135   (4th    Cir.   2003).

After reviewing the record, we conclude that the evidence is

sufficient to sustain Russo’s conviction.

              Next,        Russo     contends      that     the      district    court

constructively amended the indictment by allowing the Government

to broaden the bases for conviction beyond those charged in the

indictment.      Specifically, Russo argues the “material containing

child pornography” language of § 2252A(a)(2)(B) “put Russo on

notice that the subject of the offense was his alleged attempted

access   to    Illegal.CP.”           Thus,     Russo     contends    that   when   the

Government submitted evidence of pornographic images found in

the cache and unallocated space of his computer, this broadened


                                            3
the   bases      for    conviction,            thereby      resulting        in    constructive

amendment of the indictment.

              “A constructive amendment to an indictment occurs when

either     the    government          (usually            during    its     presentation         of

evidence and/or its argument), the court, (usually through its

instructions to the jury), or both, broadens the possible bases

for   conviction        beyond        those         presented       by     the    grand   jury.”

United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994).                                     “A

constructive          amendment           is    a       fatal      variance       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.”                                 United States

v.    Randall,        171     F.3d    195,       203       (4th     Cir.    1999)     (internal

quotation marks and citation omitted).                            A constructive amendment

is error per se, and, given the Fifth Amendment right to be

indicted by a grand jury, “must be corrected on appeal, even

when not preserved by objection.”                           Floresca, 38 F.3d at 714.

When considering a constructive amendment claim, the key inquiry

is whether the defendant has been tried on charges other than

those made in the indictment.                       Id.     After reviewing the record,

we conclude that the Government did not constructively amend the

indictment.

              Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

                                                    4
legal    contentions   are   adequately   expressed    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




                                    5
