                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-4673


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

ROGER RAY CRUMBLIN, JR., a/k/a Rajah Maurice Aiken, a/k/a
Rodger Ray Crumblin, a/k/a Roger Ray Crumblin,

                Defendant – Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:09-cr-00039-DCN-1)


Submitted:   July 14, 2011                 Decided:   July 28, 2011


Before KING, GREGORY, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Matthew M. Robinson, ROBINSON & BRANDT, P.S.C., Covington,
Kentucky, for Appellant.      William N. Nettles, United States
Attorney, Sean Kittrell, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Roger Ray Crumblin, Jr., was convicted, following a

jury trial, of being a felon in possession of a firearm, in

violation        of     18     U.S.C.        § 922(g)(1)          (2006)       (Count   One),

possession with intent to distribute cocaine and cocaine base,

in violation of 21 U.S.C. § 841(a)(1) (2006) (Count Two), and

possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2006) (Count

Three).      Crumblin was sentenced as a career offender, pursuant

to   U.S.    Sentencing           Guidelines           Manual     (“USSG”)     § 4B1.1(c)(3)

(2009), and he received a sentence of 360 months’ imprisonment.

             On appeal, Crumblin raises four issues:                            (1) that the

district court constructively amended the indictment because it

charged     the    jury      in   the       disjunctive         when   the   indictment    was

drafted     in    the    conjunctive;          (2)       that    there   was    insufficient

evidence     to       establish         that       Crumblin      possessed      firearms    or

ammunition; (3) that the district court erred in sentencing him

as a career offender and an armed career criminal; and (4) that

the district court improperly assessed a six-level enhancement,

pursuant to USSG § 3A1.2(c), for creating a substantial risk of

serious     bodily      harm      to    a    law       enforcement     officer.      For   the

reasons     that      follow,      we    affirm         the   judgment    of   the   district

court.



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                                                I.

             Crumblin           contends             that         the      district          court

constructively        amended       the    indictment             when    it   instructed       the

jury    on   Counts       One    and      Two    in       the      disjunctive       where      the

indictment was drafted in the conjunctive.                               He asserts that the

district court impermissibly broadened the possible bases for

conviction.

             A     criminal      defendant          may     only     be    tried    on    charges

alleged in an indictment, and “only the grand jury may broaden

or   alter   the      charges     in      the   indictment.”               United    States         v.

Randall, 171 F.3d 195, 203 (4th Cir. 1999).                                    “A constructive

amendment to an indictment occurs when . . . the court (usually

through      its      instructions         to        the       jury) . . . broadens             the

possible     bases     for      conviction       beyond           those    presented      by    the

grand jury,” which results in 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. Foster, 507 F.3d 233, 242 (4th Cir. 2007) (quoting

Randall, 171 F.3d at 203.                   Constructive amendments are “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.’”         Id. (quoting United States v. Floresca, 38 F.3d

706, 714 (4th Cir. 1994) (en banc)).

                                                3
               However, not every variance between an indictment and

jury     instructions          rises      to     the       level       of      a    constructive

amendment.           Indeed,      “[i]t    is    well-established              that        when    the

Government charges in the conjunctive, [but] the statute [at

issue]    is    worded      in    the     disjunctive,           the    district          court    can

instruct       the   jury    in    the     disjunctive”           without          constructively

amending the indictment.                United States v. Perry, 560 F.3d 246,

256 (4th Cir. 2009).

               Here,    although        Count        One   of    the    indictment            charged

Crumblin with possession of “firearms and ammunition, that is, a

HiPoint    9mm        pistol,      a     Taurus        .357      revolver,          .38       caliber

ammunition, .357 caliber ammunition, and 9mm ammunition,” and

Count    Two    charged      with       possession         with       intent       to    distribute

cocaine    and       cocaine      base,    the       relevant         statutes          are   phrased

disjunctively,         and       the     district          court’s       jury       instructions

tracked    the       language      of     the    statute          itself.           The       court’s

instructions were thus correct as instructing otherwise would

“improperly add elements to the crime that are not contained in

the statute itself.”              United States v. Montgomery, 262 F.3d 233,

242 (4th Cir. 2001).



                                                II.

               Next,    Crumblin        argues        that      the    evidence          adduced    at

trial was insufficient to support his conviction on Count One.

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He notes that fingerprints were not recovered from either of the

weapons.          Crumblin      asserts       that,             although    Deputy       Brennan

testified that he witnessed Crumblin discard something dark and

heavy, the poor lighting conditions undermined the reliability

of Brennan’s testimony.

             We review de novo challenges to the sufficiency of the

evidence supporting a jury verdict.                             United States v. Kelly,

510 F.3d 433, 440 (4th Cir. 2007).                          A jury verdict should be

affirmed        where,    “viewing     the        evidence          in     the     light      most

favorable to the prosecution, [it] is supported by substantial

evidence.”          United       States      v.        King,        628     F.3d       693,    700

(4th Cir. 2011) (internal quotation marks omitted).                                Substantial

evidence    is     such    “evidence      that        a    reasonable       finder      of    fact

could accept as adequate and sufficient to support a conclusion

of   a   defendant’s       guilt     beyond       a       reasonable       doubt.”         United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc).

             To convict Crumblin of a § 922(g)(1) violation, the

Government was required to prove: (1) that the “defendant was a

convicted       felon     at   the   time     of          the    offense,”       (2)    that    he

“voluntarily       and    intentionally          possessed          a    firearm,”      and    (3)

that     “the    firearm       traveled     in        interstate          commerce      at    some

point.”     United States v. Gallimore, 247 F.3d 134, 136 (4th Cir.

2001).     Crumblin disputes only the second element.



                                             5
            Although   Crumblin      presented       the    testimony      of    a

photographer concerning general nighttime visibility conditions

in the area, where Crumblin was apprehended, the jury was free

to weigh the significance of this testimony in light of the

other evidence presented.      Viewed in the light most favorable to

the Government, the record contains ample evidence permitting a

reasonable jury to conclude that Crumblin possessed the firearms

listed   in   the    indictment.          See   King,      628   F.3d    at     700

(“Throughout our review, we assume that the jury resolved any

conflicting    evidence   in   the    prosecution’s        favor.”      (internal

quotation marks omitted)).



                                     III.

            Next, Crumblin argues that the district court erred in

sentencing him as both a career offender and an armed career

criminal.     In    determining    whether      a   defendant    qualifies      as

either an armed career criminal or a career offender, we review

legal conclusions de novo and factual findings for clear error.

See United States v. Hampton, 628 F.3d 654, 659 (4th Cir. 2010).

            A defendant is a career offender under the Guidelines

if:

      (1) the defendant was at least eighteen years old at
      the time the defendant committed the instant offense
      of conviction; (2) the instant offense of conviction
      is a felony that is either a crime of violence or a
      controlled substance offense; and (3) the defendant

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       has at least two prior felony convictions of either a
       crime of violence or a controlled substance offense.

USSG § 4B1.1(a).             A “prior felony conviction” means “a prior

adult federal or state conviction for an offense punishable by

death or imprisonment for a term exceeding one year, regardless

of whether such offense is specifically designated as a felony

and regardless of the actual sentence imposed.”                         USSG § 4B1.2,

cmt.       n.1.      A   conviction     sustained       before    age     eighteen    may

qualify as a predicate conviction “if it is classified as an

adult conviction under the laws of the jurisdiction in which the

defendant was convicted.”              Id.

                  Crumblin   asserts    that      his   1994     conviction     may   not

serve as a predicate for his career offender status * because he

was seventeen years old at the time of his arrest.                              Crumblin

relies      on     the   Supreme   Court’s       decision   in    Roper    v.   Simmons,

543 U.S. 551 (2005), in which the Court held that the Eighth

Amendment prohibits imposition of the death penalty on offenders

under the age of eighteen.               He argues that Roper, considered in

conjunction with South Carolina’s Youthful Offender Act (“YOA”),

       *
         Crumblin   was    arrested   for   two   offenses   on
January 14, 1994.   The probation officer counted each as a
separate predicate offense for purposes of the armed career
criminal designation.   Crumblin’s status as a career offender
does not require that these offenses be considered separately,
because even without counting them separately, Crumblin has the
requisite predicates.   Consequently, we need not address this
contention.



                                             7
S.C. Code Ann. § 24-19-50 (2005), prohibits consideration of his

1994 conviction as a predicate offense.

             Under      South   Carolina        law,    a   youthful      offender   can

include offenders up to twenty-four years old.                           S.C. Code Ann.

§ 24-19-10(d) (2005 & Supp. 2010).                     A “child” is defined as an

individual under the age of seventeen, and the family court has

exclusive jurisdiction over juvenile offenses.                       S.C. Code Ann.

§ 63-19-20 (2010); see State v. Pittman, 647 S.E.2d 144, 160

(S.C. 2007) (construing provisions then codified at S.C. Code

Ann. § 20-7-400 (2003)).           Therefore, Crumblin’s 1994 conviction

was not a juvenile conviction, despite his YOA sentence, and he

was   sentenced      to   the   maximum     six-year        term    of    imprisonment.

Accordingly,       we   conclude   that     the        conviction    may    be    counted

toward the career offender designation.                      See United States v.

Williams,     508       F.3d    724,      727-28        (4th Cir. 2007)          (finding

conviction qualified as armed career criminal predicate where

sentence     was     imposed     under    the     YOA);      see    also     (J.A.    362

(sentence     imposed));        S.C.     Code     Ann.      § 24-19-50(3)        (maximum

penalty).

             Although     Crumblin’s       career       offender    status       controls

his sentencing, he argues that his armed career criminal status

is relevant “because it increased the statutory minimum sentence

to    15   years   imprisonment        under     § 924(e)(1).”            However,   the

statutory minimum was not an operative consideration in this

                                           8
case   as    his    sentence      was   based     on    the        Guidelines     range.

Crumblin’s armed career criminal status is thus not relevant to

the sentence imposed.



                                         IV.

             Finally,      Crumblin     asserts       that    the     district     court

erred in applying a six-level enhancement to his offense level

for creating a substantial risk of serious bodily harm to a law

enforcement officer.         In light of Crumblin’s status as a career

offender, this enhancement did not affect his sentence and we

need not address it.             See Williams v. United States, 503 U.S.

193,   203   (1992)       (concluding    that     a    procedural       error     during

sentencing is harmless if “the error did not affect the district

court’s selection of the sentence imposed”).

             Accordingly, we affirm the district court’s judgment.

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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