NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0451n.06
                             Filed: July 31, 2008

                                           No. 06-2517

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )     ON APPEAL FROM THE
       Plaintiff-Appellee,                                 )     UNITED STATES DISTRICT
                                                           )     COURT FOR THE WESTERN
v.                                                         )     DISTRICT OF MICHIGAN
                                                           )
ROBERT LAVERNE BROWN,                                      )              OPINION
                                                           )
       Defendant-Appellant.                                )



BEFORE:        SILER and COLE, Circuit Judges; and CLELAND, District Judge.*

       PER CURIAM. Brown was charged with knowingly and unlawfully escaping from the

Kalamazoo Probation Enhancement Program (“KPEP”), a probation facility that maintains halfway

houses in several counties in the Western District of Michigan. The indictment erroneously stated

that Brown escaped from the KPEP located in Kalamazoo County, when he actually escaped from

the KPEP in Calhoun County. Brown noted this discrepancy during his plea colloquy and

subsequent sentencing hearing, but acknowledged that both counties lie in the Western District of

Michigan. The district court overruled Brown’s objection to his sentence because of the erroneous

designation of county in the indictment, explaining that the court had jurisdiction notwithstanding


       *
       The Honorable Robert H. Cleland, United States District Judge for the Eastern District of
Michigan, sitting by designation.
what the court referred to as a “technical mistake” in the indictment. The court then asked Brown

whether he understood the charge, the associated penalties, and his various rights provided by law.

Brown answered affirmatively and entered a plea of guilty. Brown now appeals, arguing that the

court permitted an inappropriate variance from the charge set forth in his indictment. According to

Brown, because the grand jury indicted him for escaping from the KPEP in Kalamazoo County,

when he in fact escaped from the KPEP in Calhoun County, his Fifth Amendment right to a grand

jury was violated. He asks this Court to vacate his conviction.

       To vacate a conviction due to a “fatal” variance, Brown must satisfy a two-prong test: “(1)

the variance must be demonstrated and (2) the variance must affect some substantial right of the

defendant. A substantial right is affected only when the defendant establishes prejudice in his ability

to defend himself or to the overall fairness of the trial.” United States v. Prince, 

, 757

(6th Cir. 2000) (internal citations omitted); see also United States v. Crozier, 

, 518-19

(6th Cir. 2001). Brown fails to meet this test. Even if the mistake in the county specification

constitutes a variance—a slight one, at best—it is immaterial. The county identification was not a

necessary part of the charging language of the indictment, given that the indictment satisfied the

jurisdictional element by stating that the offense took place in the Western District of Michigan.

       Further, Brown fails to explain how the discrepancy between the county listed in the

indictment and the county from which he admits he escaped was prejudicial to his defense. The

technical error did not affect his substantial rights, as the indictment sufficiently set forth the

elements of the offense, apprised Brown of the charges against him, and protected him against

double jeopardy by providing the date of the offense. In other words, there is no risk that Brown

pleaded to a crime he did not commit or that he could face a subsequent prosecution for the same


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offense. He was charged with escaping from a KPEP facility in the Western District of Michigan

on a specific date, and this is what his conviction reflects. Logically, there is no risk that he could

later be charged with escaping from another facility on the same date because he was lawfully

detained in only one facility on that date. Any so-called “variance,” therefore, does not invalidate

or amend the indictment.

       For the foregoing reasons, we affirm Brown’s conviction and sentence.




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