UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 98-4868
MICHAEL HAMPTON MCANULTY, a/k/a
Michael McAnulty,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, District Judge.
(CR-97-120-V)

Submitted: April 6, 1999

Decided: April 22, 1999

Before ERVIN, HAMILTON, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Aaron E. Michel, Charlotte, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Brian Lee Whisler, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Michael McAnulty appeals his convictions for assault with a
deadly weapon on a mail custodian, the use and possession of a fire-
arm during a crime of violence, and being a convicted felon in posses-
sion of a firearm and ammunition in violation of 18 U.S.C. §§ 922,
924, 2114 (1994).

McAnulty contends that the district court erred in refusing to sup-
press the testimony of two government witnesses who discussed the
case in alleged violation of a sequestration order. The district court's
decision whether or not to employ the extreme remedy of excluding
the testimony of a witness who violated a sequestration order is
reviewed for an abuse of discretion. See United States v. Posada-Rios,
158 F.3d 832, 871 (5th Cir. 1998), cert. denied sub nom. Murga v.
United States, 1999 WL 87071 (U.S., Mar. 22, 1999) (No. 98-8140);
see also United States v. Cropp, 127 F.3d 354, 363 (4th Cir. 1997),
cert. denied, 66 U.S.L.W. 3491 (U.S., Jan. 26, 1998) (No. 97-7265).
"`In evaluating whether an abuse of discretion has occurred, the focus
is upon whether the witness's out-of-court conversations concerned
substantive aspects of the trial and whether the court allowed the
defense fully to explore the conversation during cross-examination.'"
Posada-Rios, 158 F.3d at 871-72 (quoting United States v. Wylie, 919
F.2d 969, 976 (5th Cir. 1990)). Here, the district court placed no limi-
tation on McAnulty's cross-examination about the out-of-court con-
versation and the record is devoid of any indication that the witness's
testimony was influenced by their conversation. Therefore, the district
court acted within its discretion in not excluding the testimony. See
Cropp, 127 F.3d at 363.

We reject McAnulty's claim that the district court's instruction to
the jury permitted him to be tried and convicted on charges not made
in the indictment against him. A constructive amendment to an indict-
ment occurs through a jury instruction only if the instruction "broad-
ens the possible bases for conviction beyond those presented by the
grand jury." United States v. Floresca, 38 F.3d 706, 710 (4th Cir.
1994) (en banc). This did not occur in McAnulty's trial. At most a
non-prejudicial variance occurred. See United States v. Redd, 161

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F.3d 793, 795 (4th Cir. 1998), pet. for cert. filed Mar. 2, 1999 (No.
98-8355). Therefore, McAnulty fails to demonstrate that his convic-
tion was obtained in violation of his Fifth Amendment rights.

McAnulty's claim that there was insufficient evidence to sustain
his convictions is belied by the record. Viewing the evidence in a
light most favorable to the government, we find that there was suffi-
cient evidence for a rational trier of fact to have found the essential
elements of the charged crimes beyond a reasonable doubt. See
United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993).

Finally, McAnulty challenges his life sentence for assaulting a mail
custodian with a deadly weapon in violation of 18 U.S.C. § 2114.
Title 18, United States Code, Section 3559(c) requires the district
court to impose a life sentence on any defendant convicted of a seri-
ous violent felony who has been previously convicted of two or more
serious violent felonies. A "serious violent felony" includes any
offense "punishable by a maximum term of imprisonment of 10 years
or more that has as an element the use, attempted use, or threatened
use of physical force against the person of another." 18 U.S.C.
§ 3559(c)(2)(F)(ii). McAnulty's conviction for assaulting persons
having custody of United States Postal Service property has as an ele-
ment the use or attempted use of force on the person of another and
is punishable by a maximum term of ten years imprisonment. See 18
U.S.C. § 2114. Accordingly, the offense is a"serious violent felony"
within the meaning of § 3559. See generally United States v. Dittrich,
100 F.3d 84, 86 (8th Cir. 1996).

McAnulty's allegation that the district court erred in its application
of the United States Sentencing Guidelines is moot in light of the
mandatory imposition of a life sentence under § 3559(c). The Sen-
tencing Guidelines state that "[w]here a statutorily required minimum
sentence is greater than the maximum of the applicable guideline
range, the statutorily required minimum sentence shall be the guide-
line sentence." United States Sentencing Guidelines Manual
("U.S.S.G.") § 5G1.1(b) (1997). When§ 3559(c) is applicable, the
district court is obligated to impose a life sentence "not withstanding
any other provision of law." 18 U.S.C. § 3559(c)(1) (emphasis
added). Because McAnulty's conviction for violating§ 2114 required
the imposition of a mandatory life sentence, the district court did not

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sentence McAnulty for that offense based on an offense level derived
from the guidelines. Therefore, his claims that the district court erred
in its application of U.S.S.G. §§ 4B1.1 and 2B3.1(b)(3)(A) provide no
basis for relief.

Accordingly, we affirm McAnulty's convictions and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately set forth in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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