IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50523 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL ANTHONY GEDMAN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-97-CR-195-1-JN -------------------- January 18, 2000

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Michael A. Gedman appeals from a judgment entered after a

jury convicted him of conspiracy to distribute marijuana,

possession with intent to distribute, assault of a federal

officer, and two counts of attempting to escape from custody.

Having reviewed the record, we will affirm.

Gedman argues that the district court erred in denying a

motion to suppress evidence seized pursuant to a search warrant.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-50523 -2-

According to Gedman, an officer’s affidavit in support of the

warrant (i) did not establish probable cause for the search and

(ii) omitted the significant fact that a confidential informant

had been unable to make a controlled drug purchase from him

within the past few days. Only the first of these two arguments

was made to the district court.

When reviewing the denial of a motion to suppress, we look

first to whether the good-faith exception to the exclusionary

rule applies and, if not, whether probable cause existed for a

search warrant. United States v. McCarty,

(5th Cir. 1994). The officer’s affidavit in this case satisfies

the good-faith exception. It indicated that the confidential

informant, who had provided credible and reliable information in

the past leading to the seizure of controlled substances, had

informed a named state police officer that he had purchased

marijuana from Gedman at Gedman’s apartment. The informant

identified a picture of Gedman and stated that he had been

dealing with Gedman for four months and had purchased marijuana

from Gedman within the past two weeks. The informant indicated

that he had seen 40-50 pounds of marijuana, in five-pound

bundles, in Gedman’s apartment. In addition, the affidavit

stated that a surveillance agent had seen a large, heavy duffle

bag carried toward the Gedman residence on the day of the search.

The affidavit also noted that on that same day, Gedman had fled

when he was stopped for a traffic violation. We hold that given

these statements, and others in the affidavit, the affidavit was

not so devoid of evidence of probable cause “‘as to render No. 99-50523 -3-

official belief in its existence entirely unreasonable.’”

(citations omitted).

Gedman’s argument regarding material omission also fails.

Because Gedman did not raise this argument in the district court,

we review for plain error. See, e.g., United States v. Fields,

(5th Cir. 1996). Gedman concedes that a

negligent omission in an affidavit is insufficient to invalidate

a warrant. He argues, instead, that the withheld information was

so “clearly critical” to a finding of probable cause that its

omission is proof that the affidavit was prepared with reckless

disregard for the truth. Although it is true that “the requisite

intent may be inferred from an affidavit omitting facts that are

‘clearly critical’ to a finding of probable cause,” this is not

such a situation. United States v. Cronan,

(5th Cir. 1991). Our review of the affidavit convinces us that

even if it had specifically noted that the informant had been

unable to effect a controlled purchase from Gedman, probable

cause would have existed. The affidavit indicated that the

informant had been able to purchase marijuana within the latest

two weeks, and there was information in the affidavit suggesting

that unusual activity was currently afoot. Accordingly, the

district court committed no error, plain or otherwise, in denying

Gedman’s motion to suppress.

Gedman argues that the Government constructively amended his

indictment. A superseding indictment alleged that Gedman had

assaulted an “officer of the United States, to wit a prison

guard” in violation of

. Gedman argues that a No. 99-50523 -4-

constructive amendment occurred because the proof at trial showed

that he had assaulted a prison guard employed by the Bastrop

County Sheriff’s Department.

A defendant has a Fifth Amendment right to be tried solely

on allegations contained in the indictment. Stirone v. United

States,

(1960). If the evidence presented

at trial constructively amends the indictment on which a

conviction was based, a reversal is required. United States v.

Munoz,

(5th Cir. 1998), cert. denied,

(1999). “[N]o constructive amendment arises where the

evidence proves facts different from those alleged in the

indictment, but does not modify an essential element of the

charged offense.” Id. (internal quotation and citation omitted).

If there is a mere variance in the facts alleged and those

actually proved, a reversal is necessary only when the indictment

did not notify “the defendant adequately to permit him to prepare

his defense and has . . . left him vulnerable to later

prosecution because of a failure to define the offense with

particularity.” Id.

We have “take[n] an expansive view of what a federal agent

is for purposes” of § 111. United States v. Hooker,

(5th Cir. 1993). In Hooker, we held that a state narcotics

officer was a federal agent when he was assaulted during the

course of a federal investigation.

Although we have not

addressed in a published opinion whether a local jailer may be a

federal agent for purposes of § 111, we agree with the Fourth

Circuit that a local jailer charged with guarding federal No. 99-50523 -5-

prisoners comes within § 111's ambit. See United States v.

Murphy,

(4th Cir. 1994).

Gedman argues that even if the prison guard was a federal

agent, his indictment did not charge the offense so broadly. We

conclude, however, that--at most--there was a variance between

the indictment and the facts proved at trial. This variance, if

any, was not fatal: There is no chance that the indictment left

Gedman unable to “adequately . . . prepare his defense” or left

him “vulnerable to later prosecution because of a failure to

define the offense with particularity,” and we do not understand

him to be arguing otherwise. Munoz,

. Gedman was

tried on the same charges that were contained in the indictment.

Accordingly, the district court did not err in denying Gedman’s

motion for judgment of acquittal.

Gedman argues that there was insufficient evidence to

support the jury’s conclusion that he used a “dangerous”1 weapon,

one of the elements of § 111(b), during his assault on the prison

guard. The evidence showed that Gedman repeatedly sprayed a fire

extinguisher at the guard; he argues that it would be

“counterintuitive” to conclude that the spray was dangerous.

We review the sufficiency of the evidence to determine

whether any reasonable trier of fact could have found that the

evidence established an element beyond a reasonable doubt.

United States v. Martinez,

(5th Cir. 1992).

1 In his brief, Gedman repeatedly states that he was charged with using a “deadly” weapon. The indictment and the relevant jury instruction used the word “dangerous.” Section 111(b) criminalizes use of either a “deadly or dangerous weapon.” No. 99-50523 -6-

In making this determination, we view the evidence in the light

most favorable to the Government. United States v. Shabazz,

(5th Cir. 1993). All reasonable inferences from

the evidence are construed in accordance with the jury’s verdict.

Martinez,

.

Whether an object constitutes a dangerous weapon is a

question of fact for the jury. United States v. Estrada-

Fernandez,

(5th Cir. 1998). To qualify, an

object must be “capable of doing serious damage to the victim of

the assault.”

(citation omitted). We conclude that a

reasonable jury could find that Gedman’s use of the fire

extinguisher constituted use of a dangerous weapon. As the guard

testified, both her breathing and her vision were endangered by

Gedman’s actions. A reasonable jury could find that the spray

and fumes from the extinguisher were capable of “doing serious

damage” to the guard.

The district court did not err in

denying Gedman’s motion for judgment of acquittal on this basis.

Gedman argues that the district court erred when sentencing

him by imposing a four-level increase pursuant to U.S.S.G.

§ 2A2.2(b)(2)(B) for use of a dangerous weapon. We review the

sentencing court’s findings of fact for clear error. United

States v. Fitzhugh,

(5th Cir. 1993). Under the

guidelines, a dangerous weapon is “an instrument capable of

inflicting death or serious bodily injury.” § 1B1.1, comment.

(n.1(d)). For the reasons just given, we perceive no error in

the district court’s determination that the fire extinguisher

constituted a dangerous weapon. No. 99-50523 -7-

Gedman cites a line of Second Circuit cases, which hold that

it may be “double counting” for a sentencing court to impose an

enhancement under § 2A2.2(b) for use of a nondangerous object

during an assault. According to those cases, when the object is

not inherently dangerous, the court must hear proof that the

object was used in some dangerous manner before utilizing the

enhancement. See United States v. Hudson,

(2d

Cir. 1992). In United States v. Morris,

, 1139 n.3

(5th Cir. 1997), cert denied,

(1998), we held

that it was unnecessary to pass on the Second Circuit’s analysis

when the defendant had used an ordinary object in a dangerous

manner. Morris controls here; as Gedman used the fire

extinguisher in a dangerous manner, it became a dangerous weapon

for purposes of the sentencing guidelines. No forbidden double

counting occurs merely because the sentencing court applies

§ 2A2.2. Id. at 1139-40.

AFFIRMED.