United States v. Dove 1 In the

14‐1150‐cr
United States v. Dove
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2016 7
8
A RGUED: FEBRUARY 14, 2017 9
D ECIDED: MARCH 6, 2018 10
11
No. 14‐1150‐cr 12
13
U NITED S TATES OF AMERICA, 14
Appellee, 15
16
v. 17
18
S TEVEN D OVE , 19
Defendant‐Appellant, 20
21
JASON C ARTER, WILLIE G REEN, E LIJAH INGRAM (AKA “EJ”), DENNIS 22
JENKINS (AKA “MEATY ”), B ENTLEY MARTIN (AKA “K ILLA,” “B”), 23
Defendants. 24
________ 25
26
Appeal from the United States District Court 27
for the Eastern District of New York. 28
No. 1:12‐cr‐391‐2 – Brian M. Cogan, District Judge. 29
________ 30
31
Before: WALKER , POOLER , AND C HIN, Circuit Judges. 32
________ 33
34

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2 14‐1150‐cr
Defendant Steven Dove appeals his conviction and sentence 1
entered in the United States District Court for the Eastern District of 2
New York (Cogan, J.) following a jury trial conviction for conspiracy 3
to distribute and possess with intent to distribute heroin and cocaine 4
in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. On appeal, Dove 5
argues that (1) a constructive amendment of the indictment resulted 6
from the district court’s jury instructions and the evidence adduced 7
at trial; (2) the trial evidence created a prejudicial variance from the 8
charges in the indictment; (3) the evidence is insufficient to support 9
his conspiracy conviction; and (4) the district court erred in 10
sentencing him as a career offender pursuant to U.S.S.G. § 4B1.1. 11
Although we agree that the evidence demonstrates that Dove was a 12
relatively minor participant, neither the jury instructions nor the 13
evidence resulted in a constructive amendment of the indictment. 14
Any variance from the indictment that occurred, moreover, did not 15
affect Dove’s substantial rights and therefore was not prejudicial. 16
Dove’s other arguments are also without merit. Accordingly, we 17
AFFIRM Dove’s conviction and sentence. 18
Judge CHIN dissents in a separate opinion. 19
________ 20
R YAN C. H ARRIS , Assistant United States Attorney 21
(Susan Corkery, Assistant United States Attorney, 22
on the brief), for Richard P. Donoghue, United 23

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3 14‐1150‐cr
States Attorney for the Eastern District of New 1
York, Brooklyn, NY, for Appellee. 2
3
JENNIFER N. MELLON, Assistant Federal Defender 4
(Charles F. Willson, Assistant Federal Defender, 5
on the brief), Federal Public Defenders for the 6
District of Connecticut, New Haven, CT, for 7
Defendant‐Appellant. 8
________ 9
JOHN M. WALKER , JR ., Circuit Judge: 10
Defendant Steven Dove appeals his conviction and sentence 11
entered in the United States District Court for the Eastern District of 12
New York (Cogan, J.) following a jury trial conviction for conspiracy 13
to distribute and possess with intent to distribute heroin and cocaine 14
in violation of 21 U.S.C. §§ 841(b)(1)(C) and 846. On appeal, Dove 15
argues that (1) a constructive amendment of the indictment resulted 16
from the district court’s jury instructions and the evidence adduced 17
at trial; (2) the trial evidence created a prejudicial variance from the 18
charges in the indictment; (3) the evidence is insufficient to support 19
his conspiracy conviction; and (4) the district court erred in 20
sentencing him as a career offender pursuant to U.S.S.G. § 4B1.1. 21
Although we agree that the evidence demonstrates that Dove was a 22
relatively minor participant, neither the jury instructions nor the 23
evidence resulted in a constructive amendment of the indictment. 24
Any variance from the indictment that occurred, moreover, did not 25
affect Dove’s substantial rights and therefore was not prejudicial. 26

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4 14‐1150‐cr
Dove’s other arguments are also without merit. Accordingly, we 1
AFFIRM Dove’s conviction and sentence. 2
BACKGROUND 3
Steven Dove appeals, following a jury trial, from his 4
conviction on a single count of conspiracy to distribute and possess 5
with intent to distribute heroin and cocaine in violation of 21 U.S.C. 6
§§ 841(b)(1)(C) and 846. The indictment also charged Dove with the 7
substantive crime of distributing and possessing with intent to 8
distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), but he was 9
acquitted of that count. 10
The government’s evidence at the four‐day trial of Dove alone 11
(after his co‐defendants pleaded guilty) consisted primarily of the 12
testimony of undercover agents and video recordings of Dove 13
participating in a drug transaction. The evidence established that 14
from approximately December 2011 to June 2012, the New York City 15
Police Department (“NYPD”) conducted an investigation known as 16
“Operation Comb the Beach” into violent homicides and narcotics 17
trafficking in the Far Rockaway neighborhood of Queens, New 18
York. As part of the investigation, an undercover officer (“UC”), 19
working with a confidential informant (“CI”), conducted a series of 20
narcotics purchases specified in the indictment. 21
The UC presented himself as a drug dealer who intended to 22
re‐sell any narcotics he purchased. Although the UC participated in 23

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5 14‐1150‐cr
more than thirty transactions during “Operation Comb the Beach,” 1
Dove was alleged to have participated in only one, which occurred 2
on the last day of the conspiracy as alleged. At trial, the government 3
presented evidence relating to only three of the drug transactions 4
involving the UC. 5
The first transaction occurred on January 25, 2012. The CI and 6
the UC met Elijah Ingram, a co‐conspirator, in the UC’s vehicle in a 7
CVS Pharmacy parking lot in Far Rockaway. The UC purchased 8
thirty Percocet pills from Ingram. Ingram told the UC that he could 9
provide other narcotics in the future, and the UC gave Ingram his 10
telephone number so that they could arrange future transactions. 11
On April 11, 2012, the CI arranged another narcotics sale—the 12
purchase of fifty glassine envelopes of heroin—for the UC through 13
an individual named Dennis Jenkins. Jenkins arranged for the UC to 14
meet with a seller, Jason Carter, in the same CVS Pharmacy parking 15
lot in Far Rockaway. At the meeting, which was recorded on video, 16
Carter sold the heroin to the UC. An NYPD officer conducting 17
surveillance observed Ingram transport Carter to and from the CVS 18
parking lot where the heroin sale with the UC took place. In 19
addition, the UC observed Ingram sitting in a vehicle in the CVS 20
parking lot during the sale. After purchasing the heroin, the UC saw 21
Carter enter Ingram’s vehicle, which Ingram then drove away. 22

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6 14‐1150‐cr
Finally, on May 22, 2012, Ingram orchestrated a purchase of 1
3.5 grams of cocaine by the UC from Steven Dove. The UC and 2
Ingram met in the same CVS Pharmacy parking lot in Far 3
Rockaway. This time, Ingram entered the UC’s vehicle and directed 4
him to drive to the Wavecrest apartment complex in Far Rockaway. 5
During the drive, the UC gave Ingram $150 for the narcotics 6
purchase. After arriving at the apartment complex, Ingram called 7
Dove and then got out of the vehicle. A few minutes later, Ingram 8
returned to the UC’s vehicle accompanied by Dove. Ingram handed 9
3.5 grams of cocaine to the UC and introduced Dove to the UC as the 10
source of supply for the cocaine. 11
Ingram instructed the UC and Dove to exchange telephone 12
numbers and indicated that the UC should contact Dove directly to 13
arrange future cocaine transactions because “that’s [Dove’s] thing.” 14
Gov. App. 2–3. The UC said that if he was successful selling the 15
3.5 grams of cocaine he had just purchased, he would contact Dove 16
in the future to arrange cocaine sales. Dove and the UC also 17
discussed pricing for potential future sales. Later that day, the UC 18
called Dove to confirm that he would contact him in the future. 19
Dove indicated that, if the UC were to call, Dove would “know what 20
it’s about.” United States v. Carter, No. 12‐cr‐391, Dkt. Nos. 163–66, at 21
104:24–105:2 (E.D.N.Y. Mar. 11, 2014) (“Trial Tr.”). 22

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7 14‐1150‐cr
During the meeting, Ingram and Dove also discussed Dove’s 1
efforts to supply Ingram with heroin from other sources for resale by 2
Ingram. The UC informed Ingram that his customers had been 3
complaining about the heroin’s quality. The UC discussed 4
purchasing a “sleeve” of heroin from Ingram, and Ingram quoted a 5
price of $700. Trial Tr. 101:7–13; Gov. App. 6–7. The UC also 6
indicated that he would continue to purchase heroin from Ingram if 7
his customers were satisfied with the heroin Ingram supplied. 8
Ingram replied that he was hoping to be able to provide high‐quality 9
heroin in the future through Dove’s sources, which Ingram and 10
Dove had discussed earlier in the conversation. 11
After the government rested, Dove moved for judgment of 12
acquittal pursuant to Rule 29 of the Federal Rules of Criminal 13
Procedure, asserting that the evidence was insufficient to support a 14
conspiracy conviction and that, to the extent the evidence proved a 15
conspiracy, it did not prove the one alleged in the indictment. The 16
district court denied the motion. 17
At the conference to discuss jury instructions, the government 18
requested that the court refrain from reading the names of the 19
co‐conspirators listed in the superseding indictment, each of whom 20
had already pleaded guilty. The superseding indictment specified in 21
Count One: 22

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8 14‐1150‐cr
On or about and between January 1, 2012 and May 22, 1
2012, both dates being approximate and inclusive, 2
within the Eastern District of New York and elsewhere, 3
the defendants JASON CARTER, STEVEN DOVE, 4
WILLIE GREEN, also known as “Floyd Goodson” and 5
“G,” ELIJAH INGRAM, also known as “EJ,” DENNIS 6
JENKINS, also known as “Meaty,” and BENTLEY 7
MARTIN, also known as “Killa” and “B,” together with 8
others, did knowingly and intentionally conspire to 9
distribute and possess with intent to distribute one or 10
more controlled substances, which offense involved: (a) 11
a substance containing heroin, a Schedule I controlled 12
substance and (b) a substance containing cocaine, a 13
Schedule II controlled substance, contrary to Title 21, 14
United States Code, Section 841(a)(1). 15
16
(Title 21, United States Code, Sections 846 and 17
841(b)(1)(C); Title 18, United States Code, Sections 3551 18
et seq.). 19
20
No. 12‐cr‐391, Dkt. No. 54, at 1–2 (E.D.N.Y. July 17, 2012). The 21
district court agreed to omit the names of Dove’s co‐conspirators, 22
with the exception of Ingram. The district court ultimately instructed 23
the jury that: “[o]n or about and between January 1, 2012 and May 24
22, 2012 . . . the defendant Steven Dove and Elijah Ingram, also 25
known as ‘EJ,’ together with others, did knowingly and intentionally 26
conspire to distribute and possess with intent to distribute one or 27
more controlled substances.” Trial Tr. 310:2–9 (emphasis added). 28
On April 11, 2013, the jury returned a verdict finding Dove 29
guilty of Count 1, conspiracy to distribute and possess with intent to 30

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9 14‐1150‐cr
distribute heroin and cocaine, and not guilty of Count 12 (the second 1
count for Dove), distributing and possessing with intent to distribute 2
cocaine. On May 8, 2013, Dove renewed his motion for acquittal 3
under Federal Rule of Criminal Procedure 29(c) claiming that the 4
evidence was insufficient. Alternatively, Dove asked that the 5
judgment be vacated and a new trial ordered in the interests of 6
justice pursuant to Federal Rule of Criminal Procedure 33. The 7
district court denied both motions on July 11, 2013. 8
The pre‐sentence report prepared by the probation officer 9
determined that Dove was eligible to be sentenced as a career 10
offender under U.S.S.G. § 4B1.1 because, in addition to (1) being 11
over eighteen years of age when he participated in the drug 12
conspiracy and (2) the conspiracy being a “controlled substance 13
offense,” (3) Dove had at least two prior felony convictions of either 14
a controlled substance offense or a crime of violence. The 15
pre‐sentence report listed three previous convictions that qualified 16
as predicate offenses for Dove’s career offender status1 : a 1986 17
conviction for Robbery in the First Degree for which he was 18
sentenced to eighteen years of imprisonment; a 2000 conviction for 19
1 The pre‐sentence report also listed a fourth conviction for a controlled
substance offense: Attempted Criminal Sale of a Controlled Substance in the
Sixth Degree. That conviction, however, occurred in 1982 and Dove received a
three‐year prison sentence. Because Dove completed that sentence more than
fifteen years prior to committing the current offense, that prior conviction could
not serve as a predicate offense. See U.S.S.G. §§ 4B1.2 cmt. n.3; 4A1.2(e) (2014).

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10 14‐1150‐cr
Criminal Sale of a Controlled Substance in the Third Degree 1
resulting in a prison sentence of nine to eighteen years; and a 2000 2
conviction for Robbery in the Second Degree for which Dove was 3
sentenced to prison for eight years and four months. 4
The probation officer, following the Career Offender 5
Guideline, U.S.S.G. § 4B1.1, increased Dove’s offense level from 6
sixteen to thirty‐two, which, when combined with Dove’s criminal 7
history category of VI, resulted in a Guidelines imprisonment range 8
of 210 to 262 months. Because the statutory maximum sentence for a 9
violation of 21 U.S.C. § 841(b)(1)(C) is twenty years, the effective 10
Guidelines range was 210 to 240 months. 11
On April 7, 2014, at the sentencing hearing, the district court 12
adopted the findings of the pre‐sentence report without specifying 13
which prior convictions served as predicate offenses for career 14
offender status. The district court imposed a below‐Guidelines 15
prison sentence of 72 months to be followed by five years of 16
supervised release. Dove now appeals both his conviction and 17
sentence. 18
DISCUSSION 19
On appeal, Dove contends that his conviction should be 20
overturned for three reasons: (1) the indictment was constructively 21
amended, either because the district court redacted the names of 22
four of the five co‐conspirators from the jury instructions or because 23

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11 14‐1150‐cr
the government’s evidence at trial effectively altered the conspiracy 1
charged; (2) the government’s evidence constituted a prejudicial 2
variance from the terms of the indictment; and (3) the evidence was 3
insufficient to support Dove’s conviction. Dove further argues that 4
his sentence was rendered procedurally unreasonable because the 5
district court erred in sentencing him as a career offender. We 6
address each of these arguments in turn. 7
I. Constructive Amendment of the Indictment 8
Dove alleges that the indictment was constructively amended 9
because the scope of the six‐member conspiracy charged in the 10
indictment was impermissibly narrowed by either (1) the district 11
court’s jury instructions, which eliminated the names of four of 12
Dove’s co‐conspirators, or (2) the government’s evidence, which 13
directly linked Dove to only one other co‐conspirator, Ingram. Dove 14
properly preserved his constructive amendment challenge and we 15
accordingly review it de novo. See United States v. Bastian, 770 F.3d 16
212, 219 n.3 (2d Cir. 2014). Dove’s constructive amendment 17
argument is unavailing, however, because neither the jury 18
instructions nor the government’s evidence altered an essential 19
element of the charges set forth in the indictment. 20
The Grand Jury Clause of the Fifth Amendment provides that 21
“[n]o person shall be held to answer for a capital, or otherwise 22
infamous crime, unless on a presentment or indictment of a Grand 23

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12 14‐1150‐cr
Jury.” U.S. Const. amend. V, cl. 1. To satisfy the Fifth Amendment, 1
an indictment must “contain the elements of the offense charged and 2
fairly inform [the] defendant of the charge against which he must 3
defend.” Bastian, 770 F.3d at 217 (internal alterations and quotation 4
marks omitted). 5
A constructive amendment occurs when the charge upon 6
which the defendant is tried differs significantly from the charge 7
upon which the grand jury voted. Not every alteration of an 8
indictment, however, rises to the level of a constructive amendment. 9
For a defendant to prevail on such a claim, he “must demonstrate 10
that either the proof at trial or the trial court’s jury instructions so 11
altered an essential element of the charge that, upon review, it is 12
uncertain whether the defendant was convicted of conduct that was 13
the subject of the grand jury’s indictment.” United States v. Salmonese, 14
352 F.3d 608, 620 (2d Cir. 2003) (emphasis added). An indictment is 15
not constructively amended, however, where a portion of the 16
indictment that is unnecessary for a conviction of the crime charged 17
is removed or altered. See United States v. Miller, 471 U.S. 130, 136–37 18
(1985). Rather, a constructive amendment occurs either where (1) an 19
additional element, sufficient for conviction, is added, see id. at 138– 20
39, or (2) an element essential to the crime charged is altered, see 21
United States v. Agrawal, 726 F.3d 235, 259 (2d Cir. 2013). 22

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13 14‐1150‐cr
The archetypal example of a constructive amendment created 1
by adding an additional element sufficient for conviction is Stirone v. 2
United States, 361 U.S. 212 (1960). In Stirone, the indictment alleged a 3
violation of the Hobbs Act based on the obstruction of interstate 4
importation of sand to be used in construction of a steel mill. 361 5
U.S. at 213–14. At trial, the prosecutor additionally argued that the 6
defendant had obstructed the interstate exportation of steel to be 7
manufactured at the mill once it was constructed. Id. at 214. This 8
addition, the Court held, constructively amended the indictment 9
because it provided an additional basis, one not considered by the 10
grand jury, upon which the petit jury may have convicted the 11
defendant. Id. at 215, 217–19. 12
A constructive amendment also occurs when the evidence 13
presented at trial alters the essential elements of the charges 14
specified in the indictment. In United States v. Wozniak, 126 F.3d 105, 15
106 (2d Cir. 1997), the defendant was charged with conspiracy to 16
possess with intent to distribute cocaine and methamphetamines. 17
The evidence at trial showed only that the defendant used cocaine 18
and marijuana and that he possessed with the intent to distribute 19
marijuana; no evidence indicated that he intended to distribute 20
cocaine and methamphetamines as charged in the indictment. Id. at 21
107–08. Under the specific circumstances of this case, a constructive 22
amendment occurred because the indictment did not notify the 23

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14 14‐1150‐cr
defendant of the core of criminality which was to be proven at trial. 1
Id. at 111; cf. United States v. Knuckles, 581 F.2d 305, 311–12 (2d Cir. 2
1978) (finding no constructive amendment when the evidence at 3
trial related to cocaine rather than heroin, because the operative facts 4
in the indictment and at trial were the same regardless of the 5
substance involved); see also United States v. D’Amelio, 683 F.3d 412, 6
419–20 (2d Cir. 2012) (comparing the two cases). 7
An alteration of the indictment that does not affect the core 8
elements of the crime is not a constructive amendment. In United 9
States v. Miller, for example, the Court found that the indictment was 10
not constructively amended when the government removed from 11
the indictment the allegation of advance knowledge of the burglary 12
charged. 471 U.S. at 133, 140. The Court’s conclusion turned upon 13
the fact that the petit jury was not required to find that the 14
defendant had advance knowledge in order to convict, so no 15
essential element of the charge was altered. Id. at 140. 16
Here, Dove asserts two grounds for finding that an essential 17
element of the indictment was altered: (1) the district court, when 18
instructing the jury, removed the names of four of the five 19
co‐conspirators, and (2) the evidence presented at trial directly 20
linked Dove only to Ingram. We address each of these arguments in 21
turn. 22
23

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15 14‐1150‐cr
A. The District Court’s Jury Instructions 1
We perceive three related but distinct theories as to how the 2
co‐conspirators’ names could have been essential to the charges set 3
forth in the indictment: (1) the names represented the specific 4
identities of Dove’s co‐conspirators; (2) the names effectively set the 5
minimum size of the conspiracy alleged in the indictment; or (3) the 6
names designated a specific conspiracy involving mostly heroin. We 7
are convinced, however, that the specific names of the 8
co-conspirators were not essential under any theory. 9
Turning first to the identities of Dove’s co‐conspirators, “it is 10
well settled law that an individual need not know the identities of 11
all coconspirators in order to be found guilty of being a member of a 12
conspiracy.” United States v. Harris, 8 F.3d 943, 946 (2d Cir. 1993). 13
The removal of four of the five names thus did not constructively 14
amend the indictment because the government did not have to 15
prove the identities of those named in order to secure a conviction of 16
Dove for participating in the conspiracy alleged in the indictment. 17
Similarly, the names did not constitute a necessary element by 18
setting the minimum size of the conspiracy. Both the jury 19
instructions and the indictment specified that the named 20
co‐conspirators, Dove and Ingram, conspired “with others.” After 21
the names of the conspirators other than Dove and Ingram were 22
removed from the jury instructions, therefore, the difference in the 23

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16 14‐1150‐cr
size of the conspiracy alleged was one with at least four members as 1
opposed to one with at least eight, six of whom were named and at 2
least two “others.” This alteration did not affect the burden on the 3
government, which was not required to demonstrate the precise 4
details or size of the conspiracy, but only to create a permissible 5
inference that Dove was aware of his role in a larger scheme. See 6
United States v. Williams, 205 F.3d 23, 33 (2d Cir. 2000). We thus fail 7
to see how the elimination of the names of four co‐conspirators 8
altered an essential element of the allegations set forth in the 9
indictment. 10
The dissent suggests a third theory as to how removing the 11
names constituted a constructive amendment: the removal 12
effectively permitted proof of a smaller, independent conspiracy 13
between Dove and Ingram involving cocaine to substitute for proof 14
of a larger conspiracy mainly involving the sale of heroin, and 15
therefore the government was never required to prove that Dove 16
knowingly participated in the broader conspiracy. We disagree. 17
First, although the May 22 transaction between Dove and the 18
UC only involved cocaine, Ingram explained to Dove his plan for 19
Dove’s sources to provide heroin for resale to others. In response, 20
Dove assured Ingram that his sources supplied good heroin. Trial 21
Tr. 96:7–25. From this conversation, a reasonable jury could infer 22
that Dove agreed to the plan and was aware of his role in a broader 23

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17 14‐1150‐cr
conspiracy to distribute both cocaine and heroin. Second, even if we 1
accept that cocaine was Dove’s “thing,” this fact does nothing to 2
rebut the inference that Dove understood that by serving as a source 3
of cocaine for buyers referred to him by Ingram, he was 4
participating in a larger, multi‐person conspiracy to distribute 5
wholesale quantities of narcotics. See id. (“A single conspiracy may 6
be found where there is mutual dependence among the participants, 7
a common aim or purpose[,] or a permissible inference from the 8
nature and scope of the operation, that each actor was aware of his 9
part in a larger organization where others performed similar roles 10
equally important to the success of the venture.”) (citation omitted). 11
Dove depended at least in part on referrals from Ingram—referrals 12
possibly generated, as here, by heroin transactions that Dove did not 13
participate in directly. It was permissible to infer from this evidence 14
that Dove was aware that others performed roles similar to his own 15
in the service of a larger conspiracy to sell narcotics to multiple 16
buyers. Accordingly, we cannot see how redacting the names altered 17
the government’s burden of proof or affected the jury’s ability to 18
determine that Dove was aware of his role in a broader conspiracy. 19
B. The Government’s Evidence 20
Dove also contends that the evidence presented at trial— 21
principally that he was directly linked to only one other member of 22

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18 14‐1150‐cr
the conspiracy, Ingram—also resulted in a constructive amendment. 1
Again, we are not persuaded. 2
The evidence at trial showed that: (1) Dove participated in one 3
transaction on the last day of the alleged conspiracy; (2) that 4
transaction was the only one to involve cocaine (as opposed to 5
heroin or pills); (3) there was no evidence directly linking Dove to 6
members of the conspiracy other than Ingram; and (4) there was no 7
evidence that investigators were aware of Dove prior to May 22. 8
We agree with Dove that the evidence demonstrated that he 9
was a relatively minor participant in the conspiracy. We do not 10
agree, however, that the evidence resulted in a constructive 11
amendment from the conduct considered by the grand jury. The 12
superseding indictment alleged that Dove was only involved in a 13
single overt act, which (1) occurred on the last day of the conspiracy; 14
(2) directly involved only one other member of the alleged 15
conspiracy, Ingram; and (3) concerned cocaine rather than heroin or 16
pills. See No. 12‐cr‐391, Dkt. No. 54, at 7. The evidence at trial of 17
Dove’s involvement was wholly consistent with the terms of the 18
superseding indictment voted on by the grand jury. See United States 19
v. Dupre, 462 F.3d 131, 140–42 (2d Cir. 2006). The evidence tended to 20
prove that Ingram and Dove agreed to sell cocaine to the UC, and 21
that Ingram told the UC, in Dove’s presence, that Dove had sources 22
for heroin that could meet the UC’s needs. Given this consistency, 23

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19 14‐1150‐cr
we cannot find that the indictment failed to provide Dove with 1
sufficient notice of the charges against which he would be required 2
to defend himself. 3
II. Prejudicial Variance from the Indictment 4
Dove argues further that the evidence adduced at trial, at a 5
minimum, resulted in a prejudicial variance because it demonstrated 6
the existence of multiple conspiracies involving Ingram, one of 7
which was a two‐person conspiracy between Dove and Ingram, 8
while the indictment alleged a single larger conspiracy. 9
We similarly review Dove’s prejudicial variance challenge de 10
novo. See D’Amelio, 683 F.3d at 416. “A variance occurs when the 11
charging terms of the indictment are left unaltered, but the evidence 12
at trial proves facts materially different from those alleged in the 13
indictment.” Id. at 417 (alteration omitted). Whereas a defendant 14
alleging a constructive amendment must establish that the evidence 15
or the jury charge on which he was tried broadens the possible bases 16
for conviction beyond the indictment voted on by the grand jury, a 17
defendant alleging a variance must establish that the evidence 18
offered at trial differs materially from the evidence alleged in the 19
indictment. See United States v. Rigas, 490 F.3d 208, 225–26 (2d Cir. 20
2007). A constructive amendment is a per se violation of the Grand 21
Jury Clause of the Fifth Amendment, requiring reversal. United 22
States v. McCourty, 562 F.3d 458, 470 (2d Cir. 2009). By contrast, 23

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20 14‐1150‐cr
reversal is only warranted for a variance if the defendant shows 1
both: (1) the existence of a variance, and (2) that “substantial 2
prejudice” occurred at trial as a result. See United States v. 3
McDermott, 245 F.3d 133, 139 (2d Cir. 2001). This distinction is an 4
important factor in our decision to affirm. 5
The government conceded at argument that a variance 6
occurred in Dove’s trial because a single conspiracy was alleged but 7
the evidence would allow the jury to find the existence of multiple 8
conspiracies. The dispositive question therefore is whether this 9
variance was prejudicial. In assessing whether a defendant is 10
prejudiced when the evidence would allow a jury to find multiple 11
conspiracies rather than the single conspiracy alleged, “[o]ne of the 12
principal considerations . . . is the ‘spill[‐]over effect’ of permitting 13
testimony regarding one conspiracy to prejudice the mind of the 14
jury against the defendant who is not a part of that conspiracy but 15
another.” Harris, 8 F.3d at 947. Accordingly, we consider several 16
factors, including: (1) whether the court gave a Pinkerton charge 17
(permitting a jury, once it finds that a conspiracy exists, to find a 18
defendant guilty of a separately charged substantive crime 19
committed by a co‐conspirator in furtherance of that conspiracy for 20
which the defendant, as a conspirator, bears responsibility); (2) 21
whether out‐of‐court statements of persons not members of the 22
defendant’s conspiracy were used against the defendant; (3) whether 23

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21 14‐1150‐cr
there was prejudicial spill‐over due to a large number of joined 1
defendants; and (4) whether any inflammatory or shocking evidence 2
(from outside the defendant’s conspiracy) came in against the 3
defendant. See McDermott, 245 F.3d at 139; see also Pinkerton v. United 4
States, 328 U.S. 640 (1946). After a multiple‐conspiracy variance is 5
shown, the presence of just one of these factors may be sufficient to 6
satisfy the prejudice prong. See United States v. Johansen, 56 F.3d 347, 7
351–52 (2d Cir. 1995). 8
Dove concedes that none of the McDermott prejudice factors 9
are present. Appellant’s Br. at 29. He argues, nonetheless, that he can 10
demonstrate prejudice because “[o]ne of the core purposes of the 11
Grand Jury Clause . . . is to protect a defendant’s right to notice of 12
the charges against him.” Id. Dove provides no authority, however, 13
for the proposition that a defendant may satisfy the multiple 14
conspiracy variance prejudice prong where none of the McDermott 15
factors are present. See id. at 29–31. 16
Moreover, we do not find Dove’s notice argument persuasive 17
for two reasons. First, although the evidence at trial may have 18
permitted the jury to find multiple conspiracies, Dove had notice 19
from the indictment that the government would attempt to prove 20
three drug transactions and that those transactions were overt acts in 21
furtherance of a conspiracy involving Dove, Ingram, and others. 22
Dove also knew that he was alleged to have participated as a seller 23

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22 14‐1150‐cr
in only one controlled buy involving only one other named 1
co‐conspirator. We thus do not see how he could have been 2
surprised by the evidence upon which the government relied at trial. 3
Second, the concern underlying the variance prejudice prong 4
is whether “the evidence proving the conspiracies in which the 5
defendant did not participate [i.e., those between Ingram and the 6
other alleged members of the larger conspiracy] prejudiced the case 7
against [Dove] in the conspiracy to which he was a party.” Johansen, 8
56 F.3d at 351 (emphases in original). Indeed, this purpose is evident 9
from the types of considerations embodied in the McDermott test. 10
Here, the government introduced evidence of two acts involving 11
Ingram but not Dove—the January 25, 2012 sale of thirty Perocet 12
pills to the UC and the April 11, 2012 sale of fifty glassine envelopes 13
of heroin to the UC—in addition to evidence demonstrating the 14
business relationship between Ingram and Dove, with Dove serving 15
as a supplier of cocaine and heroin. Dove provides no evidence, nor 16
is there any reason to suspect, that the two undercover buys 17
involving Ingram but not Dove prejudiced Dove’s defense in 18
regards to the conspiracy between himself and Ingram. We 19
accordingly see no basis to conclude that Dove’s substantial rights 20
were affected by the evidence adduced at trial and conclude that any 21
variance was not prejudicial. 22

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23 14‐1150‐cr
III. Sufficiency of the Evidence 1
Dove also argues that his conviction should be overturned 2
because the evidence at trial was insufficient to convict him of 3
conspiracy to distribute heroin and cocaine. The evidence at trial 4
demonstrated at a minimum an agreement between Dove and 5
Ingram to engage in transactions resulting in the transfer of 6
narcotics—both cocaine and heroin. All of the hallmarks of a 7
conspiracy, therefore, are present. See United States v. Parker, 554 F.3d 8
230, 234 (2d Cir. 2009). Dove argues, however, that the evidence was 9
insufficient due to the “buyer‐seller” exception. Dove is mistaken. 10
We review a claim of insufficiency of the evidence de novo. 11
United States v. Geibel, 369 F.3d 682, 689 (2d Cir. 2004). Nevertheless, 12
a conviction must be upheld if “any rational trier of fact could have 13
found the essential elements of the crime beyond a reasonable 14
doubt,” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in 15
original), and the evidence must be viewed in the light most 16
favorable to the government, United States v. Temple, 447 F.3d 130, 17
136–37 (2d Cir. 2006). In the conspiracy context, moreover, “the 18
existence of a conspiracy and a given defendant’s participation in it 19
with the requisite knowledge and criminal intent may be established 20
through circumstantial evidence.” United States v. Chavez, 549 F.3d 21
119, 125 (2d Cir. 2008). 22

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24 14‐1150‐cr
The buyer‐seller exception is a narrow one: it stands only for 1
the proposition that “the mere purchase and sale of drugs does not, 2
without more, amount to a conspiracy to distribute narcotics.” 3
United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015). The primary 4
reason for this exception is to avoid imposing the more severe 5
punishments resulting from liability for conspiracy to distribute 6
controlled substances upon individuals who merely buy and possess 7
controlled substances for their own personal use. See Parker, 554 F.3d 8
at 234–35. The exception does not apply if “the evidence supports a 9
finding that [the buyer and seller] shared a conspiratorial purpose to 10
advance other transfers, whether by the seller or by the buyer.” 11
Brock, 789 F.3d at 63. Though there is not an exhaustive list of factors 12
courts consider, we have identified the following as relevant: “[(1)] 13
prolonged cooperation between the parties, [(2)] a level of mutual 14
trust, [(3)] standardized dealings, [(4)] sales on credit, and [(5)] the 15
quantity of drugs involved.” Id. at 64 (alteration omitted). 16
The buyer‐seller exception does not apply here. The evidence 17
adduced at trial showed that Dove and Ingram: (1) enjoyed mutual 18
trust and extensive cooperation, including Ingram’s familiarity with 19
Dove’s criminal history and ability to procure large quantities of 20
high‐quality narcotics; (2) had a history of standardized dealings in 21
wholesale quantities of heroin; and (3) were planning future sales of 22
wholesale quantities of heroin plainly not intended for personal use. 23

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25 14‐1150‐cr
Dove’s argument that the buyer‐seller exception applies in this 1
instance is wholly without merit. 2
IV. Career Offender Designation 3
Finally, Dove argues that he was improperly sentenced as a 4
career offender because two of the offenses specified in the 5
pre‐sentence report as predicate offenses under the Career Offender 6
Guideline, U.S.S.G. § 4B1.1, do not qualify as such. Specifically, 7
Dove contends that the probation officer inappropriately considered 8
his New York convictions for first‐ and second‐degree robbery as 9
crimes of violence under the force clause of the Career Offender 10
Guideline. 11
The parties dispute whether Dove preserved this objection to 12
his designation as a career offender.2 See Appellant’s Br. at 36; 13
Appellee’s Br. at 35. When a party properly objects to a sentencing 14
error in the district court, we review for harmless error; issues not 15
raised in the district court are reviewed for plain error. United States 16
v. Villafuerte, 502 F.3d 204, 207 (2d Cir. 2007). 17
2 Dove submitted a sentencing memorandum arguing that “the career offender
determination clearly overstates the true guideline range” under which Dove
should be placed. No. 12‐cr‐391, Dkt. No. 168, at 5 (E.D.N.Y. Mar. 24, 2014). At
the sentencing hearing, the district court referred to Dove’s “objection to the
career criminal enhancement.” Sentencing Tr. at 8:6–7. The government argues
that these were not properly raised objections to whether Dove met the technical
requirements of the Career Offender Guideline. Appellee’s Br. at 35 n.2 (as
corrected Jan. 13, 2017).

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26 14‐1150‐cr
We need not resolve whether the objection was preserved 1
because there was no error here, plain or otherwise. The district 2
court properly sentenced Dove as a career offender. Dove may at 3
one time have had a viable argument that New York robbery did not 4
categorically (in every case) qualify as a crime of violence under the 5
force clause of U.S.S.G. § 4B1.1 and that the section’s residual clause 6
was void for vagueness after Johnson v. United States, 135 S. Ct. 2551 7
(2015), but neither argument is available now. In the wake of Beckles 8
v. United States, 137 S. Ct. 886 (2017), which held that the Guidelines 9
are immune from a vagueness challenge, we have held that New 10
York robbery, regardless of degree, is categorically a crime of 11
violence pursuant to the residual clause in effect at the time of 12
Dove’s April 7, 2014 sentencing hearing.3 See United States v. Jones, 13
878 F.3d 10, 18–19 (2d Cir. 2017) (as amended). Dove’s prior 14
convictions therefore are both crimes of violence within the meaning 15
of U.S.S.G. § 4B1.1 and he was properly designated a career 16
offender. 17
CONCLUSION 18
For the reasons stated above, we AFFIRM both Dove’s 19
conviction and the sentence imposed by the district court. 20
3 With only one exception not relevant here, district courts are to sentence
defendants pursuant to the version of the Guidelines in effect on the date of
sentencing. See 18 U.S.C. § 3553(a)(4)(A); see also Beckles, 137 S. Ct. at 890 & n.1.

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D ENNY C HIN, Circuit Judge:
I respectfully dissent.
The indictment charged a six‐person, five‐month heroin and cocaine
conspiracy. At trial, after the close of the evidence, the district court eliminated
four of the names and read to the jury a redacted Count One that charged
defendant‐appellant Steven Dove with being a member of, in essence, a two‐
person conspiracy. Both the original and redacted indictment included the words
ʺtogether with others,ʺ but the proof at trial was limited to Doveʹs interaction with
one co‐conspirator ‐‐ Elijah Ingram ‐‐ involving one sale of cocaine on the last day
of the charged conspiracy.
The government acknowledges that there was a variance between the
proof at trial and the conspiracy charged in the indictment, but argues that it was
a non‐prejudicial variance. Dove argues that there was more than a variance ‐‐ he
contends that there was an amendment. Indeed, Dove argues that ʺthe indictment
was amended to charge a different conspiracy.ʺ Appelleeʹs Br. at 16. I agree.
ʺ[A] court may not alter or amend the indictment, literally or
constructively, once it has been returned by the grand jury. An indictment has
been constructively amended when the trial evidence or the jury charge operates

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2
to broaden the possible bases for conviction from that which appeared in the
indictment.ʺ United States v. McCourty, 562 F.3d 458, 470 (2d Cir. 2009) (internal
citations and quotations omitted). A constructive amendment is viewed as a per
se violation of the Grand Jury Clause, requiring reversal even absent a showing of
prejudice. United States v. Wozniak, 126 F.3d 105, 109 (2d Cir. 1997). Not all
divergences from the terms of an indictment, however, qualify as an
unconstitutional constructive amendment, and we have ʺconsistently permitted
significant flexibility in proof, provided that the defendant was given notice of the
core of criminality to be proven at trial.ʺ United States v. DʹAmelio, 683 F.3d 412, 417
(2d Cir. 2012) (emphasis in original).
In my view, the indictment was constructively amended by the trial
courtʹs reading of the redacted Count One to the jury and the trial evidence, for
the following reasons:
● Dove was involved in only one of 30 transactions ‐‐ the last
transaction, on May 22, 2012, the last day of the alleged conspiracy.
● The last transaction was the only one that involved cocaine; the
first 29 transactions involved principally heroin and some pills.

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3
● The undercover telephoned Ingram for cocaine, but Ingram did
not have cocaine, and that was when Ingram reached out to Dove.
● When Ingram introduced the undercover to Dove, he told
them: ʺ[Y]ʹall change numbers. That way I can be out of it. You can still talk, talk
to me, contact me . . . . But, you know, holler at him, cause thatʹs his thing. Thatʹs
his thing.ʺ Appendix 2‐3.
● There was no evidence that Dove had any involvement or
contact with any of the four co‐conspirators whose names were redacted.
● There was no evidence that any of the investigators in the
comb‐the‐beach investigation were aware of Dove prior to the events of May 22nd.
Thus, the evidence presented showed that Dove had his own ʺthingʺ:
Dove had a cocaine business and Ingram reached out to him because the
undercover wanted cocaine ‐‐ rather than heroin or pills and Ingram was unable
to provide cocaine.
The governmentʹs shift in its theory of the case ‐‐ centered around the
evidence summarized above ‐‐ even surprised the district court: ʺThe case the
[g]overnment put on was not the case I expected to hear.ʺ Addendum at 13. While
the district court expected to hear a case about Doveʹs involvement in a six‐person,

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4
five‐month heroin and pills conspiracy, as charged in the indictment, the
government presented proof instead of a distinct, two‐person, one‐day cocaine
conspiracy. As a consequence, the indictment did not give Dove notice of the ʺcore
of criminality to be proven at trial.ʺ United States v. Agrawal, 726 F.3d 235, 259‐60
(2d Cir. 2013) (citation omitted). Instead of the broader conspiracy originally
charged in the indictment, the government tried Dove on a very different charge:
a one‐transaction deal where Ingram brought a buyer to Dove who wanted
something Ingram could not provide ‐‐ cocaine.
To prove a conspiracy, the government must show ʺmutual
dependence among the participants, a common aim or purpose or a permissible
inference from the nature and scope of the operation, that each actor was aware of
his part in a larger organization where others performed similar roles equally
important to the success of the venture.ʺ United States v. Williams, 205 F.3d 23, 33
(2d Cir. 2000) (internal quotation marks and citation omitted). Courts must
determine whether the conspiracy was a ʺsingle enterprise.ʺ United States v.
Cambindo Valencia, 609 F.2d 603, 623 (2d Cr. 1979) (citing Kotteakos v. United States,
328 U.S. 750, 769 (1946)). To make this determination courts evaluate ʺthe degree
of connection between each alleged conspirator and the enterprise as a whole.ʺ Id.

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5
Here, once the names were omitted from the indictment it became
exceedingly difficult for the jury to determine Doveʹs awareness of the enterprise
and agreement to participate in the broad, originally‐charged conspiracy. The
evidence against Dove did not indicate that he was a part of an enterprise with
Ingram and four other co‐conspirators, but instead that he had his own operation
and that the transaction between Ingram and Dove was more of a referral than a
joint venture. By redacting the indictment, however, the district court did not
require the government to prove Doveʹs awareness of his part in the larger
enterprise, but rather allowed the jury to convict on any conspiracy involving
Ingram and Dove, expanding the possible bases for conviction beyond the
conspiracy charged in the indictment.
The constructive amendment ‐‐ made after the close of the
governmentʹs case ‐‐ effectively permitted proof of a smaller, independent
conspiracy involving cocaine between Dove and Ingram to substitute for proof of
a larger, broader conspiracy involving heroin and pills. As a result, the jury was
not required to infer that Dove was aware of his part in a larger organization;
rather, his agreement to participate in one transaction with Ingram alone sufficed
to prove both the existence of a broad conspiracy and Doveʹs knowing

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6
participation in it. The district court itself expressed concern with the
governmentʹs theory, before ultimately deciding to redact the indictment, noting
that it ʺpushes the outer limits of conspiracyʺ and is ʺnot a slam‐dunk for the
[g]overnment by any means.ʺ Addendum at 8.
The government asserts that it was permitted to focus its proof on
ʺonly a subset of the conduct that formed the basis for the charged conspiracy.ʺ
Appelleeʹs Br. at 13; see United States v. Salmonese, 352 F.3d 608, 620 (2d Cir. 2003)
(ʺWhere charges are constructively narrowed or where a generally framed
indictment encompasses the specific legal theory or evidence used at trial, there is
no constructive amendment.ʺ (citation and internal quotation marks omitted)).
Although the proof at trial narrowed the scope of the charged conspiracy, it did
not narrow ʺthe possible bases for conviction from that which appeared in the
indictment.ʺ McCourty, 562 F.3d at 470 (citing Rigas, 490 F.3d 208, 225 (2d Cir.
2007)). Indeed, to the contrary, the district courtʹs action had the effect of
broadening the basis on which Dove could be convicted ‐‐ it permitted Dove to be
convicted of virtually any conspiracy involving just him and Ingram rather than a
broader conspiracy that involved multiple players in addition to him and Ingram.
The proof presented was not, as the government argues, that Dove played a small

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7
role in a larger conspiracy but, rather, that Dove played a large role in a smaller,
different conspiracy.
This is not a case where the language removed from the indictment
was mere surplusage or ʺunnecessary to an offense that is clearly contained within
it.ʺ United States v. Miller, 471 U.S. 130, 144 (1985). Doveʹs trial strategy was to
challenge the governmentʹs claim that he was aware of his role in a larger narcotics
distribution conspiracy with a shared purpose. The possibility of such a challenge,
however, was effectively taken away by the constructive amendment of the
indictment.
The majority suggests that Doveʹs challenge is without merit because
a criminal defendant need not know the identities of his or her coconspirators. See
United States v. Harris, 8 F.3d 943, 946 (2d Cir. 1993). The cases on which Harris
relies, however, are factually distinct from the matter at hand. Harris considers
whether a conspiracy can be found where the government has evidence of
coordination with others but is unable to determine the identity of the
coconspirators. Id.; see also United States v. Cepeda, 768 F.2d 1515, 1517 (2d Cir. 1985)
(holding that there was insufficient evidence of a conspiracy based on the presence

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8
of drug paraphernalia in a dwelling cohabitated with others).1 Here, the
government charged a conspiracy with individually identifiable coconspirators
and then simply removed the names of those individuals when Dove tried to
demonstrate that he was unaware of their involvement.
For the reasons set forth above, I conclude that the district courtʹs
redaction of Count One and the governmentʹs proof at trial constructively
amended the indictment as such a way as to deprive Dove of notice of the core of
criminality to be proven at trial. See United States v. Bastian, 770 F.3d 212, 220 (2d
Cir. 2014) (ʺUltimately, whether an indictment has been constructively amended
comes down to whether ʹthe deviation between the facts alleged in the indictment
and the proof [underlying the conviction] undercuts the[] constitutional
requirementsʹ of the Grand Jury Clause: allowing a defendant to prepare his
defense and to avoid double jeopardy.ʺ (quoting United States v. Rigas, 490 F.3d at
228)). ʺAlthough the trial court did not permit a formal amendment of the
indictment, the effect of what it did was the same.ʺ Stirone v. United States, 361 U.S.
1 The maxim that a coconspiratorʹs identity need not be known is often coupled with the limitation
that ʺthe evidence must support the existence of such unknown persons and their complicityʺ ‐‐ a
clarification that is only useful if there is doubt as to the literal existence of a coconspirator, a stark contrast
to the situation here, where the alleged coconspirators were not only known to exist but were identified by
name. United States v. Cepeda, 768 F.2d 1515, 1517 (2d Cir. 1985).

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9
212, 217 (1960). I would vacate the judgment of the district court. Accordingly, I
dissent.

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