UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4321

PERNELL JEFFREY SELLERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CR-97-20)

Submitted: March 31, 1999

Decided: August 17, 2000

Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Harry A. Smith, III, JORY & SMITH, Elkins, West Virginia, for
Appellant. William D. Wilmoth, United States Attorney, Zelda E.
Wesley, Assistant United States Attorney, Clarksburg, West Virginia,
for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Pernell Jeffrey Sellers appeals his conviction for cocaine conspir-
acy (21 U.S.C. § 846 (1994)), killing or causing a killing in further-
ance of a continuing criminal enterprise (21 U.S.C.A. § 848(e) (West
Supp. 1998)), interstate travel in aid of racketeering (18 U.S.C.
§§ 1952, 2 (1994)), and using or carrying a firearm during a crime of
violence (18 U.S.C.A. § 924(c) (West Supp. 1999), 18 U.S.C. § 2
(1994)), and the life sentence he received. He contests his convictions
on the grounds that the district court's jury instruction on killing in
furtherance of a continuing criminal enterprise was a constructive
amendment of the indictment and that the evidence was insufficient.
He challenges his sentence by asserting that two criminal history
points were incorrectly assigned for commission of the offense while
under a sentence of unsupervised probation, see U.S. Sentencing
Guidelines Manual § 4A1.1(d) (1997), and that the district court
clearly erred in finding that he had more than a minimal or minor role
in the offense, see USSG § 3B1.2. We affirm.

During 1996, Sellers sold crack for Eric Turner in Maryland and
West Virginia. On October 26, 1996, Turner and Sellers were in
Shepherdstown, West Virginia, when a crack user, Jennifer Folmar,
was shot and stabbed to death. Summarized in the light most favor-
able to the government, see Glasser v. United States, 315 U.S. 60, 80
(1942), the evidence at trial showed that, on the day she died, Folmar
bought crack on Ray Street from Henry Lee Grantham in the morn-
ing. Grantham got the crack from Turner, who conducted the transac-
tion out of Folmar's sight because he did not trust her. Folmar
returned in the evening to buy more crack, but Henry Lee Grantham
was not home. Folmar bought $20 worth of crack from another person
and then sat in her car, a white Camaro. Her presence bothered a
number of people who were out on the street, including Turner, who
believed her to be an informant. Denise Grantham, Turner's girl-
friend, asked Folmar to leave. Folmar drove to the end of Ray Street,
turned the corner, and parked her car on the left side of German
Street.

Julian Pace rode his bicycle down the hill and Turner, wearing a
distinctive white leather coat, jumped on the bike and rode down with

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him. Stopping near the Camaro, Pace saw Turner pull a surgical glove
from his pocket, put it on, and shoot Folmar twice. Pace and Turner
then went back up Ray Street. Denise Grantham heard the shots but
did not see Turner go down the street or return. After Turner appeared
and talked to Denise for a while, Sellers came up. He said to Turner,
"When you sing someone a lullaby, aren't you supposed to put them
to sleep?" and told Turner that Folmar was still alive. She said Sellers
and Turner then walked down the street together and came back a
short while later, after which Turner went into the house and washed
something at the kitchen sink. Denise testified that Turner gave a pair
of gloves to Phillip Kidrick and told him to get rid of them.

Richard Pannell testified at trial that, shortly after he heard the first
two shots, Sellers came to him and asked if he had a razor blade.
Julian Pace testified that, a little while after he watched Turner shoot
Folmar, he heard Turner ask Sellers whether he still had the razors.
When Sellers answered that he did, Turner and Sellers went down the
hill toward Folmar's car. As they went, Pace said Turner said he was
going to finish what he had started. Pace then heard more gunshots.

A police patrol car drove up Ray Street just after the second shots
were fired. The police noticed Folmar's car parked on the wrong side
of German Street and one of the officers saw a man walking up the
hill in a white leather coat who made a throwing gesture as the police
car passed. The police turned around at the end of the street, went
back to the intersection where Folmar was parked, stopped to check
on her car, and discovered that she was dying of bullet and knife
wounds. They subsequently found a bloody white leather jacket on
the porch of the house where Turner and Denise Grantham were visit-
ing, and a .25 caliber handgun in the area where they had seen Turner
make a throwing motion. Gunshot residue and a mixture of Turner's
and Folmar's blood were on the right sleeve of the jacket and Fol-
mar's blood was on the gun. Turner's fingerprint was on the driver's
side front window of the Camaro.

The three bullets removed from Folmar's body came from the .25
caliber handgun, which belonged to Sellers. One witness testified at
trial that he saw Sellers give a gun to Turner on the day of the murder.
The same witness said that, after the first shots were fired, he went
down the hill to Folmar's car where several people had gathered. Sell-

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ers came by, asked if Folmar was dead, and was told she was still
alive. After the murder, Sellers, Turner, and Denise Grantham all
traveled to Maryland. Denise testified that, a few days later, she heard
Sellers and Turner discussing the murder and that it was her under-
standing from the conversation that Turner shot Folmar and Sellers
stabbed her.

Not all the witness testimony was consistent with this account.
John Marshall Grantham testified that, while he was sitting on a wall
on German Street, he saw Sellers shoot into the white Camaro. How-
ever, two defense investigators testified that, from that spot 345 feet
from where the Camaro was parked, they could not recognize an indi-
vidual at night. Ronald Lee Kidrick testified that Sellers was with him
on Ray Street when the second series of shots was fired. During
cross-examination of a number of witnesses, defense counsel estab-
lished that their testimony was inconsistent with prior statements or
that their prior statements failed to mention details provided at trial.

I. Jury Instruction

Count Three of the indictment charged that Sellers"did unlawfully
kill and did cause the intentional killing" of Folmar. The district court
instructed the jury that they could convict Sellers if they found that
he had killed Folmar or caused her killing, or if he had "counseled,
commanded, induced, or procured" the killing. The additional lan-
guage is contained in § 848(e),1 but was not included in the indict-
ment. Following his conviction, Sellers moved for a new trial,
asserting, among other things, that addition of the"counseled, com-
manded, induced, or procured" language in the jury instruction for
Count Three amounted to a constructive amendment of the indictment.2
The district court denied the motion.
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1 The statute prescribes a penalty of 20 years to life for anyone who,
while engaged in a continuing criminal enterprise,"intentionally kills or
counsels, commands, induces, procures, or causes the intentional killing
of an individual and such killing results." 21 U.S.C.A. § 848(e).
2 Sellers also argued that the inclusion of this language was an imper-
missible aiding and abetting instruction, but has abandoned this argument
on appeal.

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When the government or the court "broadens the possible bases for
conviction beyond those included in the indictment, a constructive
amendment occurs which is per se reversible error." United States v.
Ellis, 121 F.3d 908, 923 (4th Cir. 1997), cert. denied, ___ U.S. ___,
66 U.S.L.W. 3457 (U.S. Jan. 12, 1998) (No. 97-7095). Relying on
United States v. Floresca, 38 F.3d 706 (4th Cir. 1994), Sellers argues
that the inclusion in the jury instruction on Count Three of language
from the statute which was not charged in the indictment exposed him
to "uncharged allegations" which his defense had not addressed. In
Floresca, the district court instructed the jury that it could convict if
it found the defendant guilty under subsection (b)(1) or (b)(3) of 18
U.S.C.A. § 1512(b) (West Supp. 1998). Only subsection (b)(1) was
charged in the indictment, and subsection (b)(3) proscribed a separate
crime. See Floresca, 38 F.3d at 710 n.9. This Court found that the
instruction constructively amended the indictment by allowing the
jury to convict the defendant on a charge not made in the indictment.
See id. 38 F.3d at 711. Sellers also likens himself to the defendant in
United States v. Downer, 143 F.3d 819, 822 (4th Cir. 1998), where
a constructive amendment occurred when the trial judge substituted
another offense for the one charged in the indictment after it was dis-
covered that the charged offense did not come into law until after the
offense was committed.

In this case, however, the additional language in the jury instruc-
tion did not charge a separate crime or a different crime from the one
charged in the indictment. Moreover, "causing" a killing is a broader
charge than "counseling, commanding, inducing or procuring" a kill-
ing. Sellers was on notice that he could be convicted on evidence of
his direct or indirect involvement in the murder. Therefore, no con-
structive amendment occurred.

II. Sufficiency of the Evidence

Sellers does not contest his conviction for conspiracy to possess
cocaine with intent to distribute (Count Two). He contends that the
evidence was insufficient to convict him of killing or causing the kill-
ing of Folmar in furtherance of a continuing criminal enterprise
(Count Three), traveling from Maryland to West Virginia to carry on
a drug business and then killing Folmar to further the drug business
(Count Four), and of the resulting § 924(c) charge (Count Five). A

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conviction must be upheld if, viewing the evidence in the light most
favorable to the government, a rational jury could find substantial evi-
dence to support the conviction. See Glasser v. United States, 315
U.S. 60, 80 (1942); United States v. Burgos, 94 F.3d 849, 857 (4th
Cir. 1996). The appeals court does not independently weigh the evi-
dence or judge the credibility of witnesses. See United States v.
Reavis, 48 F.3d 763, 771 (4th Cir. 1995). Of course, if the govern-
ment's evidence is weak and the contrary evidence is strong, the
reviewing court may find that substantial evidence was lacking. See
United States v. Giunta, 925 F.2d 758, 768 (4th Cir. 1991).

While Sellers' evidence cast doubt on the testimony of the one wit-
ness who recounted seeing Sellers shoot Folmar, Denise Grantham's
testimony provided a sufficient basis for Sellers' conviction on
Counts Three and Four. In addition, the evidence that Sellers caused
the knife attack on Folmar was substantial because two witnesses tes-
tified that Sellers was looking for a knife (or razor) just before he
accompanied Turner to Folmar's car. Sellers argues that he was not
important enough in Turner's drug business to have acted in further-
ance of the enterprise. However, a number of witnesses testified that
Sellers was Turner's right-hand man for drug dealing.

Finally, Sellers maintains that there was no evidence that the kill-
ing had any connection to furthering the criminal enterprise. This
argument flies in the face of evidence that Turner thought Folmar was
working for the police and had an interest in getting rid of her for that
reason. Substantial evidence thus supports Sellers' convictions on
Counts Three and Four. Because there was also substantial evidence
that he aided and abetted Turner's use of a firearm to kill Folmar,
Sellers' challenge to his conviction on the § 924(c) charge (Count
Five) necessarily fails.

III. Criminal History

Two criminal history points are given if the defendant committed
the instant offense while under "a criminal justice sentence." See
USSG § 4A1.1(d). The commentary to § 4A1.1 specifies that a crimi-
nal justice sentence must have a custodial or supervisory component,
but that active supervision is not necessary and that unsupervised pro-
bation is considered a criminal justice sentence. See USSG § 4A1.1,
comment. (n.4). See also United States v. LaBella-Szuba, 92 F.3d

                     6
136, 138 (2d Cir. 1996) (power to revoke conditional discharge is
supervisory component); United States v. Kimberlin, 18 F.3d 1156,
1160 (4th Cir. 1994) (affirming addition of two points for commission
of offense while on unsupervised probation). Sellers argues that his
sentence of unsupervised probation did not include a custodial or
supervisory component. Because his probation was subject to revoca-
tion for violation of the conditions imposed, his argument is without
merit.

IV. Role

A defendant may have a minimal role in the offense if he made
only a small contribution to it and had little understanding of it. See
USSG § 3B1.2, comment. (n.1). He may have a minor role if he is
less culpable than "most other participants," but has more than a mini-
mal role. USSG § 3B1.2, comment. (n.4). A defendant has the burden
of showing that he had a mitigating role of any sort. See United States
v. Reavis, 48 F.3d 763, 869 (4th Cir. 1995). However, the court
should not only compare the defendant's conduct to that of other par-
ticipants, but "measure . . . [it] against the elements of the offense of
conviction." Id. (quoting United States v. Daughtrey, 874 F.2d 213,
216 (4th Cir. 1989)).

Sellers argues that he was less culpable than Turner in the murder
(the most important offense for sentencing purposes), and qualified
for a mitigating role adjustment because the evidence of his active
involvement was not credible. The district court found that Sellers
had not met his burden of proof. We agree. Sellers was convicted of
either participating in the killing or causing it. There was evidence
that he urged Turner to finish Folmar off after she survived the first
shooting and that he personally stabbed Folmar. Sellers provided no
further evidence of his role at sentencing. Consequently, denial of a
minor role adjustment was not clear error.

We therefore affirm the conviction and sentence. 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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