United States v. Grammas ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50730
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GUS PETER GRAMMAS,
Defendant-Appellant.
__________________________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-00-CR-110-ALL
__________________________________________
May 2, 2002
Before POLITZ, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
*
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not be published and is not precedent except under the limited circumstances set forth in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.
Gus Peter Grammas appeals his bench trial conviction for altering, tampering,
obliterating, or removing the vehicle identification number on a motor vehicle, and
for possession of a firearm by a felon. He contends that the
Government constructively amended the indictment with regard to being a felon in
possession of a gun.
A constructive amendment “occurs when the jury is permitted to convict the
defendant on a factual basis that effectively modifies an essential element of the
offense charged in the indictment.”1 Here, the essential elements of the charged
offense were not modified and, in fact, did not differ from the charge in the
indictment.
Grammas also contends that the evidence at trial was insufficient to sustain
the verdict of his being a felon in possession of a gun because the Government did
not adduce evidence demonstrating that he knew that the gun was in his house. This
court “reviews a district court’s finding of guilt after a bench trial to determine
whether it is supported by ‘any substantial evidence.’”2
Although “mere control or dominion over the place in which contraband or an
illegal item is found by itself is not enough to establish constructive possession
1
United States v. Millet, 123 F.3d 268, 272 (5th Cir. 1997).
2
United States v. Ceballos-Torres, 218 F.3d 409, 411 (5th Cir. 2000) (citation
omitted), cert. denied, 531 U.S. 1102 (2001).
when there is joint occupancy of a place,”3 the record contains sufficient evidence
that Grammas had ownership and control over the weapon. His conviction must be
and is affirmed.
Grammas also contends that the Government did not meet its burden of
proving the amount of loss requiring restitution in the amount of $8,012.80. We
review the legality of the district court’s order of restitution de novo and, if the
award of restitution is permitted by the appropriate law, we review the propriety of
the particular award for an abuse of discretion.4 The Government, to its credit, has
called to our attention that the amount of restitution is related to the conduct charged
in Count One of the indictment, which was dismissed. This obvious error requires
that the district court’s order of restitution be vacated , and the case remanded for
resentencing.5
Finally, Grammas maintains that the addition of one point to his criminal
history score for his prior misdemeanor conviction for aiding and abetting the illegal
entry of aliens was error under U.S.S.G. § 4A1.2(c). Because Grammas was
sentenced to one year of probation, U.S.S.G. § 4A1.2(c)(1) does not apply.
3
United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993) (emphasis in
original).
4
United States v. Norris, 217 F.3d 262, 271 (5th Cir. 2000).
5
See 18 U.S.C. § 3742(f)(1); United States v. Stout, 32 F.3d 901, 905 (5th Cir.
1994).
Accordingly, unless Grammas’ sentence for aiding and abetting the illegal reentry of
aliens is “similar” to those offenses listed in U.S.S.G. § 4A1.2(c)(2), the district
court’s inclusion of his conviction for aiding and abetting the illegal reentry of aliens
would be error. Grammas, however, does not address the issue of whether his
conviction for aiding and abetting the illegal reentry of aliens is similar to the listed
offenses. He thus has waived this point of error.6 The district court’s sentence
with regard to this issue is affirmed.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
6
See, e.g., United States v. Green, 964 F.2d 365, 371 (5th Cir. 1992).