Certiorari granted, October 5, 2012 Vacated by Supreme Court, June 17, 2013

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 11-4208

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ALLEN RYAN ALLEYNE,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:10-cr-00134-REP-1)

Submitted: November 30, 2011 Decided: December 15, 2011

Before WILKINSON, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Mary E. Maguire, Assistant Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Richmond, Virginia, for Appellant. Neil H. MacBride, United States Attorney, Michael R. Gill, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Allen Ryan Alleyne appeals his conviction and

resulting 130-month custodial sentence. A federal jury found

Alleyne guilty of robbery affecting commerce in violation of

(a), 2 (2006) and use or carry of a firearm during

and in relation to a crime of violence in violation of

(c), 2 (2006). We affirm the judgment.

Alleyne first argues that the evidence was

insufficient to support either of his convictions. We review

the denial of a motion for a judgment of acquittal de novo.

United States v. Smith,

(4th Cir. 2006). A

defendant challenging the sufficiency of the evidence faces a

heavy burden. United States v. Beidler,

(4th Cir. 1997). The verdict of a jury must be sustained “if,

viewing the evidence in the light most favorable to the

prosecution, the verdict is supported by ‘substantial

evidence.’” Smith,

. Substantial evidence is

“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.”

(internal quotation marks

omitted). “Reversal for insufficient evidence is reserved for

the rare case where the prosecution’s failure is clear.”

Beidler,

(internal quotation marks omitted).

2 Importantly, we “do not review the credibility of the

witnesses and assume that the jury resolved all contradictions

in the testimony in favor of the government.” United States v.

Foster,

(4th Cir. 2007). We are mindful that

“the jury, not the reviewing court, weighs the credibility of

the evidence and resolves any conflicts in the evidence

presented.” Beidler,

(internal quotation marks

and brackets omitted).

Alleyne fails to persuade us that the evidence against

him was insufficient to sustain his convictions. He claims that

the only witness who connected him to the robbery was inherently

incredible. We refuse to substitute our own credibility

assessment for that of the jury. Moreover, independent evidence

corroborated much of the witness’ testimony. Although no direct

testimony established that he participated in the use of the

firearm, such an inference was reasonable given Alleyne’s

participation in the planning and execution of the robbery.

Alleyne’s sufficiency of the evidence arguments lack merit.

Alleyne contends that he was convicted under a theory

of aiding and abetting liability despite an unambiguous charge

in the indictment that he acted as the principal. He claims

that the Government’s presentation of evidence and the court’s

jury instructions on aiding and abetting liability

constructively amended the indictment.

3 “A constructive amendment to an indictment occurs when

either the government (usually during its presentation of

evidence and/or its argument), the court (usually through its

instructions to the jury), or both, broadens the possible bases

for conviction beyond those presented by the grand jury.”

United States v. Floresca,

(4th Cir. 1994). “A

constructive amendment is 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. Randall,

(4th Cir. 1999) (internal

quotation marks omitted). A constructive amendment is 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.” Floresca,

.

“Because the aiding and abetting provision [

] does not set forth an essential element of the offense with

which the defendant is charged or itself create a separate

offense, aiding and abetting liability need not be charged in an

indictment.” United States v. Ashley,

(4th

Cir. 2010). A defendant “may be convicted of aiding and

abetting under an indictment which charges only the principal

offense.” United States v. Duke,

(4th Cir.

1969).

4 We do not find that Alleyne’s indictment was

constructively amended during trial. The indictment

specifically charged violation of

(2006), thereby

putting Alleyne on notice of the Government’s aiding and

abetting theory. See United States v. Robinson,

(7th Cir. 1992). He was not convicted of a crime other

than that charged in the indictment.

Nor do we find that the presentation of the aiding and

abetting theory of liability constituted a prejudicial variance.

No impermissible prejudice occurs if “the indictment provides

the defendant with adequate notice of the charges against him

and is sufficient to allow the defendant to plead it as a bar to

subsequent prosecutions.” United States v. Redd,

(4th Cir. 1998). Alleyne was indisputably on notice of

the Government’s intention to pursue an aiding and abetting

theory of liability before his trial. Alleyne has not alleged

that the indictment is insufficient to bar re-prosecution

against him. We do not find a prejudicial variance on these

facts.

Alleyne’s final appellate argument is that the

district court erred by holding him responsible at sentencing

for brandishing a firearm. The court’s finding elevated

Alleyne’s mandatory minimum sentence for the firearm conviction

from five years to seven years pursuant to 18 U.S.C. 924(c). We

5 review a district court’s factual findings at sentencing for

clear error. United States v. Pauley,

(4th

Cir. 2002).

We first note, as Alleyne has conceded, that Supreme

Court precedent forecloses any argument that Alleyne’s

constitutional rights were violated by the district court’s

finding that he was accountable for brandishing the firearm

despite the jury’s finding that he was not guilty of that

offense. Harris v. United States,

(2002). We

do not find the district court’s finding otherwise clearly

erroneous.

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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