United States v. Albert Andrews, III , 547 F. App'x 248 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4126
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERT LEE ANDREWS, III,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00117-NCT-1)
Submitted: November 19, 2013 Decided: November 27, 2013
Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
Kearns Davis, Mary F. Peña, BROOKS, PIERCE, MCCLENDON, HUMPHREY
& LEONARD, L.L.P., Greensboro, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Robert A. J. Lang,
Assistant United States Attorney, Christopher Edwards, Third
Year Law Student, Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Albert Lee Andrews, III, appeals his convictions and
360-month sentence imposed after he was convicted by a jury of
interference with commerce by robbery of a Domino’s Pizza
restaurant, in violation of 18 U.S.C. § 1951 (2012), and
carrying, using, and brandishing a firearm during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) (2012). On appeal, Andrews argues that the evidence
presented and argued by the Government at trial resulted in a
fatal variance that requires this court to vacate his
convictions. He also contends that the district court erred in
sentencing him as a career offender. The Government argues that
there was no fatal variance between the indictment and the
evidence presented at trial, and that Andrews’ convictions
should accordingly be affirmed. The Government concedes,
however, that Andrews’ career offender sentence is improper
after this court’s decision in United States v. Davis, 720 F.3d
215 (4th Cir. 2013), and therefore that his sentence should be
vacated and the case remanded for resentencing.
According to Andrews, evidence presented at trial
established that the money taken from the Domino’s business
belonged to the franchise owner rather than to Domino’s, and
such evidence constituted a fatal variance from the indictment.
“This court reviews de novo a claim of constructive amendment to
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an indictment.” United States v. Malloy, 568 F.3d 166, 177 (4th
Cir. 2009). “When the government, through its presentation of
evidence or its argument, or the district court, through its
instructions to the jury, or both, broadens the bases for
conviction beyond those charged in the indictment, a
constructive amendment -- sometimes referred to as a fatal
variance -- occurs.” United States v. Allmendinger, 706 F.3d
330, 339 (4th Cir. 2013) (citation omitted), cert. denied, 133
S. Ct. 2747 (2013). “An indictment is constructively amended,
and a fatal variance occurs when 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.” Id. (internal quotation marks and
citation omitted). Based on our review of the record, we
conclude that no fatal variance occurred.
Andrews argues, and the Government concedes, that his
career offender designation is no longer valid after Davis,
because he received only a single sentence on the multiple
charges that were consolidated by the state court. The
presentence investigation report noted Andrews’ convictions on
five counts of felony robbery with a dangerous weapon, two
counts of felony assault with a dangerous weapon with intent to
kill, and one count of felony discharge of a weapon into
occupied property. These charges were consolidated for judgment
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and resolved at a single hearing, after which the state court
issued a single judgment sentencing Andrews to a term of
imprisonment. In Davis, this court held “that a consolidated
sentence under North Carolina law is a single sentence for
purposes of the career offender enhancement.” Davis, 720 F.3d
at 216; see also id. at 219-20. Thus, after Davis, the state
charges that were resolved by the consolidated judgment count as
only one career-offender predicate. Andrews has no other prior
felony convictions, and thus he does not qualify for sentencing
as a career offender.
Accordingly, we affirm Andrews’ convictions, vacate
his sentence, and remand for resentencing. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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