IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-40594 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HERBERT EDWARD JAMES,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:92-CR-163-1

November 6, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Herbert Edward James appeals from the sentence imposed by the

district court after we granted his

petition,

vacated his sentence, and remanded for resentencing.1 James first

argues that his conviction and sentence are invalid because the

verdict returned by the jury was based on a redacted indictment

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 See United States v. James, No. 99-41476 (5th Cir. Jan. 29, 2001). different from the first superseding indictment returned by the

grand jury. The redacted indictment used by the jury differed from

the first superseding indictment in that it omitted counts 2 and

5,2 which the government had dismissed, and renumbered the

remaining counts.

In 1993, James was convicted for various drug related offenses

and for being a felon in possession of a firearm. We previously

upheld James’s conviction on direct appeal in United States v.

Washington.3 Thereafter, we granted James a certificate of

appealability and granted relief under

, holding

that James had shown that his trial counsel rendered ineffective

assistance by failing to challenge the indictment because two

counts alleging that James had used or carried a firearm during and

in relation to a drug trafficking crime were tied to the same drug

conspiracy.4 On this basis, we vacated James’s conviction on one

of the counts and remanded for resentencing.5

The issue that James raises concerning a difference between

2 Count 2 alleged that on May 6, 1992, James possessed with intent to distribute a mixture or substance which contained a detectable amount of cocaine base. Count 5 alleged that a co- defendant, Leonard Provost, possessed with intent to distribute five grams or more of a mixture or substance containing cocaine base on November 4, 1992. 3

(5th Cir. 1995). 4 James, No. 99-41476. 5

-2- the first superseding indictment and the redacted indictment is

outside the scope of this court’s mandate in the remand order, and

therefore was not properly before the district court at

resentencing.6 Furthermore, even were the issue properly before

the district court, that court did not err in overruling James’s

objection to his presentence report. First, although James urges

that the renumbering of the indictment produced a fatal variance

between the jury verdict and the superseding indictment returned by

the grand jury, he misapprehends the concept of a legal variance.

“To prevail on a material variance claim, a defendant must prove

(1) a variance between the indictment and the proof at trial, and

(2) that the variance affected the defendant’s substantial

rights.”7 Here, Appellant is not alleging a variance in the legal

sense, that is, he is not asserting a variance between the charges

in the indictment and the evidence proffered by the government at

trial. Rather, James is utilizing the term “variance” in its more

literal sense: He claims that the verdict varied from the first

superseding indictment because, for example, the jury’s guilty

verdict as to count 2 of the redacted indictment actually

translated to the jury having found James guilty as to count 3 of

the first superseding indictment. Thus, James’s objection is more

accurately characterized as alleging an unlawful amendment to the

6 United States v. Marmolejo,

(5th Cir. 1998). 7 United States v. Herrera,

(5th Cir. 2002).

-3- indictment, rather than a variance.

James’s argument that the renumbering constituted an

impermissible amendment to the indictment is unavailing. All due

process requires is “that an indictment afford a defendant notice

of the charges so that the defendant can prepare an adequate

defense.”8 The defendant cannot show that the redacted indictment

failed to afford him notice of the charges against which he had to

defend, because the only changes wrought by the redaction were a

deletion of two dismissed counts and a concomitant renumbering of

the charges. Thus, no substantive amendment to the indictment was

made, and James’s constitutional rights were not violated.9

James also argues that his sentence based on his drug

8 United States v. Alvarez-Moreno,

(5th Cir. 1989). 9

(“‘[I]f a defendant has actual notice of the charges, due process may be satisfied despite an inadequate indictment.’”); cf. United States v. Zvi,

(2d Cir. 1999) (finding that redaction of indictment did not constitute a constructive amendment of the indictment); United States v. Adkinson,

(11th Cir. 1998) (“A redaction of an indictment is permissible so long as the elements of the offense charged are fully and clearly set out in what remains.... An indictment may not, however, be so severely redacted that any of the elements of the offense are expunged.”); United States v. Difronzo,

(9th Cir. 1994) (Table) (“DiFronzo contends that the district court erred when it redacted Count 1.... [W]e reject[] the argument that a redacted indictment is an impermissible amendment.”).

-4- convictions10 violates Apprendi v. New Jersey,11 because the district

court did not instruct the jury to find a drug quantity as an

element of the offenses. This issue, too, is beyond the scope of

our remand order.12 Moreover, James admits that the procedural

posture of this case is in the nature of collateral review, and we

have held that Apprendi is not retroactively available to cases on

collateral review in § 2255 proceedings.13

AFFIRMED.

10 These constitute counts 1 though 6 of the redacted indictment and counts 1, 3, 4, 6, 7, and 8 of the first superseding indictment. 11

(2000). 12 Marmolejo,

. 13 United States v. Brown,

(5th Cir. 2002).

-5-