                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 05-4488



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


REGINALD PARKER,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Louise W. Flanagan, Chief
District Judge. (CR-04-275)


Submitted:   January 3, 2007                 Decided:   January 19, 2007


Before WILKINS, Chief Judge, and GREGORY and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


Rudolph A. Ashton, III, MCCOTTER, ASHTON & SMITH, P.A., New Bern,
North Carolina, for Appellant. George E. B. Holding, Acting United
States Attorney, Anne M. Hayes, Barbara D. Kocher, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Reginald   Parker       appeals    his   conviction    and    sentence    for

conspiring to make false statements in connection with the sale and

acquisition of firearms.        See 18 U.S.C.A. §§ 371, 922(a)(6) (West

2000).    We affirm.


                                        I.

     On   December     21,   2002,     Parker   was   a   felon,   having     been

convicted of armed robbery in 1992.              Nevertheless, that day he

acquired a rifle at a pawn shop in Goldsboro, North Carolina, by

having another man, Travis James, purchase the weapon for him and

represent in the necessary paperwork that James was the actual

buyer of the weapon.         Later, in February 2003, Parker and James

made a similar purchase of a 12-gauge shotgun at a Goldsboro pawn

shop, with James again representing in the required paperwork that

he was buying the weapon for himself.

     Parker was subsequently charged in a three-count indictment

with one count of conspiracy to make false statements in connection

with the acquisition of a firearm and two counts of possessing a

firearm     after      being      convicted        of      a      felony,      see

18 U.S.C.A. § 922(g)(1) (West 2000).            The indictment alleged that

Parker conspired with a man named Roderick R. Warren and with

“others both known and unknown to the grand jury.”                     J.A. 12.

Following a jury trial, Parker was found guilty of the conspiracy

charge but not guilty of the two remaining counts.                 The district

                                        2
court imposed a sentence of 60 months imprisonment, the statutory

maximum punishment for his offense.


                                     II.

      Parker first maintains that the district court erred in

denying his motion to suppress the SKS firearm, or alternatively,

to prevent the Government from referring to the fact that the

weapon was recovered in Philadelphia, Pennsylvania, at a prior

residence of Parker’s.        Parker contends that suppression was

required because he was not timely notified that the Government had

obtained the firearm, see Fed. R. Crim. P. 16, and because its

probative value was substantially outweighed by the danger that it

would cause him unfair prejudice, see Fed. R. Evid. 403.                   We

disagree.

      The Government explained to the district court that it had

maintained an open-file policy, that it intended to offer Parker

the opportunity to inspect the weapon, and that it had notified

Parker immediately upon acquiring the weapon.            Nevertheless, the

district court informed Parker that it would accommodate a request

to   reschedule   Parker’s   trial    date   so   that   he   could   conduct

additional investigation concerning the firearm.1 This handling of

Parker’s motion was well within the discretion of the district

court.



       1
         Parker did not request a continuance.

                                      3
      The ruling of the district court that the evidence was not

excludable under Rule 403 was also well supported.              The testimony

that a weapon purchased for Parker was recovered from a city where

Parker had resided previously tended to prove that he possessed the

weapon and then disposed of it.           To the extent that admission of

the   evidence   damaged   Parker’s   case,    it   was   due   only   to   its

legitimate probative value, not to any unfairness.


                                  III.

      Parker also argues that the district court erred in denying

his motion for acquittal on the conspiracy charge because the

indictment alleged a conspiracy between Warren, Parker, and other

unindicted coconspirators, but the evidence established that Warren

was not part of any conspiracy.       We disagree.

      Parker concedes that the Government was not required to show

that each of the people named in the indictment as members of the

conspiracy was actually a member of the conspiracy in order to

prove that a conspiracy existed. And, Parker does not contend that

the evidence was insufficient to prove such a conspiracy.                   He

nevertheless maintains that the absence of proof that all of the

people named in the indictment were members of the conspiracy was

insufficient “to support the indictment as charged.”             Reply Br. of

Appellant Reginald Parker at 5.       Although he does not describe it

as such, it appears that Parker’s claim is that there was an

unconstitutional variance from his indictment.

                                      4
      A “variance” occurs when the evidence presented at trial

differs materially from the facts alleged in the indictment.                    See

United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994).

However,      a    variance     is   not   grounds   for   reversal   “unless    it

prejudices the defendant either by surprising him at trial and

hindering the preparation of his defense, or by exposing him to the

danger of a second prosecution for the same offense.”                    See United

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

      Here, even assuming arguendo that a variance occurred, it

certainly was not grounds for reversal. The specificity with which

the   indictment        described     the    alleged    conspiracy    was     easily

sufficient to put Parker on notice of the conspiracy sought to be

charged and to protect him from possibly being prosecuted a second

time for the same offense.


                                            IV.

      Parker next contends that the district court erred in allowing

the Government to cross-examine him regarding the large number of

firearms he had been involved with storing at his uncle’s house in

relation to the armed robbery that served as his predicate felony

conviction for the felon-in-possession charges.                 We disagree.

      Parker and the Government stipulated to the existence and

nature   of       the   prior   felony     conviction   for   Parker’s    §   922(g)

charges, and they now agree that, in light of the stipulation,

further evidence regarding the conviction would not have been

                                            5
admissible to prove the prior-conviction element of that offense.

The Government nevertheless asserts that Parker’s trial testimony

made the Government’s questioning relevant.

       The Government’s position stems from Parker’s testimony on

cross-examination contradicting the testimony of at least one

Government witness that Parker had asked for a 30-round clip to go

with the firearm purchased on December 21, 2002.            After denying

that he had asked for the clip, Parker added, “I don’t know where

that came from, because I don’t know anything about a clip.               I

wouldn’t even know how it goes into that gun that’s sitting on that

floor.    If you gave it, I wouldn’t know how it fit in there.”         J.A.

376.     Parker denied ever “handling a big weapon like that.”           Id.

He then testified that he had handled “[m]aybe two” firearms in his

life.    Id.

       In light of this testimony, the Government sought to question

Parker regarding his handling of more than 70 firearms he had

helped steal during the armed robbery that was the predicate felony

for his § 922(g) charges.       Over Parker’s objection, the district

court ruled that “the government may question the defendant about

whether    or   not   he   handled   guns   with   regard   to   his   prior

conviction,” and specified that “this line of inquiry may make

reference to a particular number of guns.”             Id. at 491.       The

Government subsequently asked Parker whether it was true “that at

one time [he had been] involved with ... taking to and storing at


                                      6
[his] uncle’s house 69 handguns, three rifles and two shotguns.”

Id. at 497.      Parker admitted that he had, then he added that

“[t]hat was the charge that I admitted to with the armed robbery.”

Id.

      The district court was within its discretion in allowing the

questioning.    Once Parker testified that he had handled only two

firearms in his life, had never handled a large firearm, and thus

would not know anything about the clip that at least one government

witness claimed that Parker asked for, the testimony about Parker’s

involvement    with   the   tens   of       firearms   became   relevant   “to

contradict [the] specific statements” that Parker had made and

therefore prevent Parker from undermining the credibility of the

government witnesses who testified that Parker asked for the clip.

See United States v. Leavis, 853 F.2d 215, 220 (4th Cir. 1988).

The Government was therefore “entitled ... to rebut the false

impression [Parker] was creating by his testimony.”             Id.

      Parker also argues that the probative value of the testimony

was substantially outweighed by its potential to cause him unfair

prejudice.    See Fed. R. Evid. 403.        That was not the case, however.

We have already explained the probative value of the evidence.

While it did have the potential to damage Parker’s case, there was

nothing unfair about this potential prejudice.




                                        7
                                      V.

        Parker next argues that the district court erred in refusing

to instruct the jury regarding entrapment.             He maintains that

evidence presented to the jury tended to show that he involved

himself with the charged conspiracy and firearm transactions in an

attempt to implicate those individuals with whom he dealt and

thereby obtain leniency for his friend--and now wife--Christina

Ellis, who was facing criminal charges of her own.               We disagree.

        A defendant “is entitled to an entrapment instruction whenever

there is sufficient evidence from which a reasonable jury could

find entrapment.”        Mathews v. United States, 485 U.S. 58, 62

(1988).     “[A] valid entrapment defense has two related elements:

government inducement of the crime, and a lack of predisposition on

the part of the defendant to engage in the criminal conduct.”               Id.

at   63.     “‘Inducement’   ...   involves     elements    of    governmental

overreaching     and   conduct   sufficiently    excessive       to   implant   a

criminal design in the mind of an otherwise innocent party.”

United States v. Daniel, 3 F.3d 775, 778 (4th Cir. 1993).

      Here, Parker failed to present evidence that government agents

induced him to engage in the charged conspiracy.                  The district

court    thus   correctly   refused   to   instruct   the    jury     regarding

entrapment.




                                      8
                                        VI.

        Parker finally contends that the district court erred in

counting a 1988 aggravated assault conviction as three criminal

history points in calculating his advisory guideline range, thereby

placing him in Criminal History Category IV rather than III.                    Even

assuming that the district court erred, however, the error was

harmless because the change from Category IV to III would not have

reduced Parker’s guideline range; either way it would have been 60

months, the statutory maximum for the offense of conviction.2                   See

18 U.S.C.A. § 371; United States Sentencing Guidelines Manual

§   5G1.1(a)      (2004)   (“Where   the       statutorily    authorized   maximum

sentence is less than the minimum of the applicable guideline

range, the statutorily authorized maximum sentence shall be the

guideline sentence.”).


                                        VII.

      In sum, for the foregoing reasons, Parker’s conviction and

sentence are affirmed.         We dispense with oral argument because the

facts       and   legal   contentions   are      adequately    presented   in   the




        2
       But for the existence of the statutory maximum, the
 guideline range calculated as Parker suggests would have been 63-
 78 months as opposed to 77-96 months if the aggravated assault
 conviction counted for three points.

                                           9
materials   before   the   court   and   argument   would   not   aid   the

decisional process.


                                                                  AFFIRMED




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