                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            APR 30, 2007
                            No. 06-12186
                                                          THOMAS K. KAHN
                      ________________________
                                                              CLERK

                D. C. Docket No. 05-00165-CR-ORL-31JGG

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

JAMES ROOSEVELT LEE,
CALVIN DEON LEE,

                                                      Defendants-Appellants.


                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (April 30, 2007)

Before CARNES, WILSON and HILL, Circuit Judges.

PER CURIAM:
      Brothers Calvin and James Lee were convicted of possession with the intent

to distribute cocaine base and a substance containing a detectable amount of

cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1); (b)(1)(B)(iii);

(b)(1)(C). The brothers raise multiple issues on appeal.

                                       I.

      Calvin Lee raises three contentions. First, he argues that the district court

plainly erred in refusing to instruct the jury on Florida constructive possession

law. We disagree, because in a federal criminal prosecution federal law applies,

not state law.

      Second, Calvin Lee argues that the district court erred in refusing to grant

him a partial reduction for acceptance of responsibility. Our circuit precedent

squarely forecloses his position on that issue because it establishes that a

defendant gets either the full two-point reduction for acceptance of responsibility

or none at all. United States v. McPhee, 108 F.3d 287, 289 (11th Cir. 1997). The

Booker decision did nothing to change that, because an accurate calculation of the

sentencing guidelines range is still required. United States v. Watkins, 477 F.3d

1277, 1279 (11th Cir. 2006).

      Third, Calvin Lee argues that the discrepancy in the treatment of powder

and crack cocaine at sentencing is unconstitutional, but that position also is

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foreclosed by binding precedent. See United States v. Williams, 456 F.3d 1353,

1364–69 (11th Cir. 2006).

                                           II.

      James Lee also raises three contentions. One is that the evidence presented

by the government was insufficient to sustain his conviction. It wasn’t. There was

ample evidence from which the jury reasonably could find, as it did, that he was

guilty beyond a reasonable doubt.

      James Lee also contends that the district court “constructively amended” the

indictment by instructing the jury that it could convict him for less than the 5

grams of cocaine base when the indictment itself specified that he had possessed

with intent to distribute “a quantity of 5 grams or more of a mixture and substance

containing a detectable amount of cocaine base.” The special verdict submitted to

the jury instructed it to decide that issue of guilt or innocence first and, if the

verdict was guilty, then to decide whether 5 grams or more was involved or less

than that amount was.

      We have held that a “[constructive] amendment occurs when the essential

elements of the offense contained in the indictment are altered to broaden the

possible bases for conviction beyond what is contained in the indictment.” United

States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). For a number of reasons that

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did not happen here. We have held that quantity is not an element of the offense.

United States v. Clay, 376 F.3d 1296, 1301 (11th Cir. 2004) (noting that “the

specific quantity of drugs for which [the defendant] was accountable is not an

element of the crime charged”). “A violation of section 841(a)(1) occurs when the

government proves beyond a reasonable doubt that a defendant possessed and

intended to distribute a ‘controlled substance’ . . . . The nature and quantity of the

controlled substance are relevant only to sentencing.” United States v. Williams,

876 F.2d 1521, 1525 (11th Cir. 1989).

      Because a constructive amendment occurs only when an element of the

offense is altered to broaden the possible bases for conviction beyond what is

contained in the indictment, and quantity is not an element of this offense, there

was no constructive amendment and no danger that the defendants were convicted

of a crime not charged in the indictment. See United States v. Gómez-Rosario,

418 F.3d 90, 104 (1st Cir. 2005) (finding no constructive amendment when the

jury was permitted to find defendant guilty of either more than 100 grams or less

than 100 grams of heroin, even though the defendant was indicted for distributing

approximately 975 grams of heroin); United States v. Patterson, 348 F.3d 218,

227–28 (7th Cir. 2003) (finding no constructive amendment when the jury found

the defendant, who was charged with distributing 5 kilograms or more of cocaine,

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guilty of distributing less than 5 kilograms but more than 500 grams of the drug);

see generally United States v. Behety, 32 F.3d 503, 509 (11th Cir. 1994) (“The

danger that we are concerned with is that a ‘defendant may have been convicted

on a ground not alleged by the grand jury’s indictment.’” (quoting United States v.

Peel, 837 F.2d 975, 979 (11th Cir. 1988)). Besides, the jury’s answer to the

special interrogatory found that the defendants had possessed with intent to

distribute 5 grams or more of cocaine base, which is exactly what the indictment

explicitly alleged.

      James Lee’s reliance on United States v. Narog, 372 F.3d 1243 (11th Cir.

2004), is misplaced. In that case, the defendants were charged with a variety of

offenses involving the possession and distribution of pseudoephedrine. Id. at

1244. The indictment specifically alleged that the defendants participated in the

scheme knowing or having reasonable cause to believe that the pseudoephedrine

would be used to produce methamphetamine. Id. But the court instructed the jury

that the government need only prove that the defendants knew or had reason to

believe that the pseudoephedrine would be used to manufacture any controlled

substance. Id. In other words, the indictment included language describing the

statutory crime (possessing and distributing a listed chemical knowing or having

reason to know it would be used to manufacture a controlled substance) and

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additional language narrowing the charged crime to a subset of the statutory crime

(that the chemical was to be used to produce methamphetamine). The district

court broadened that charge by instructing the jury that it could convict the

defendants if it found that they knew or reasonably believed the pseudoephedrine

would be used to produce not just methamphetamine but any drug. Id.

Broadening the description of the drug to be produced (from methamphetamine to

any illegal drug) impermissibly broadened the charges in the indictment.

      By contrast with the present case, in Narog the charged crime was

broadened through an enlargement of one of its terms. Id. at 1249. Furthermore,

in Narog, unlike in the present case, there was no special interrogatory answer

establishing that the jury convicted the defendant on precisely the allegations set

out in the indictment. Id. Here, there was no constructive amendment.

      Finally, James Lee argues that the cumulative effect of the district court’s

evidentiary rulings and the government’s misconduct rendered his trial

fundamentally unfair. Because there was no individual error, there was no

cumulative effect from erroneous rulings.

                                        III.

      AFFIRMED.




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