                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5216


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DWIGHT SPEARS,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry F. Floyd, District Judge.
(7:08-cr-00112-HFF-3)


Submitted:    June 25, 2009                 Decided:   November 10, 2009


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


C. Carlyle Steele, Greenville, South Carolina, for Appellant.
W. Walter Wilkins, United States Attorney, Regan A. Pendleton,
William J. Watkins, Jr., Assistant United States Attorneys,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Dwight      Spears          was    convicted         after    a    jury      trial    of

conspiracy        to    murder      a     federal       law       enforcement         officer      in

violation of 18 U.S.C. § 115(a)(1)(A) (2006).                               He was sentenced

to 240 months of imprisonment.                       On appeal, counsel raises three

issues:     (1)    whether         the    district      court       erred       by    failing       to

dismiss     the    indictment            or    grant    a     directed         verdict      because

testimony     revealed             that        Spears       had     withdrawn             from    the

conspiracy; (2) whether the district court erred in failing to

dismiss the indictment because Spears committed no overt act in

furtherance       of    the    conspiracy;           and    (3)     whether       the      district

court erred by charging the jury that it was Spears’ burden to

prove withdrawal from the conspiracy by a preponderance of the

evidence.         Spears      has    filed       two    pro    se    supplemental           briefs,

alleging that his conviction under 18 U.S.C. § 115(a)(1)(A) was

erroneous and therefore his indictment should be dismissed for

lack   of   subject        matter        jurisdiction         under       Fed.       R.   Crim.     P.

12(b)(3)(B).           For the reasons that follow, we affirm in part,

vacate in part, and remand.

             Although         we    review       Spears’      first       argument         de    novo,

United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997), the

argument fails because the evidence did not reveal that Spears

withdrew from the conspiracy. United States v. Cardwell, 433

F.3d 378, 391 (4th Cir. 2005).

                                                 2
             The second argument lacks merit because there is no

overt act element in a conspiracy offense.                      See United States v.

Shabani, 513 U.S. 10, 13-14 (1994) (noting that absent statutory

or    congressional        guidance    to    the       contrary,     the    common      law

understanding of conspiracy does not make the doing of any other

act a condition of liability).                   Moreover, even if an overt act

was    required     for     conviction      under       the     statute,    the    record

reveals     that    Spears    engaged       in    acts     in    furtherance       of   the

conspiracy,        e.g.,    casing    the    area       where     the    coconspirators

expected to ambush and shoot the Federal Bureau of Investigation

agent.      See generally United States v. Ochoa-Torres, 626 F.2d

689, 691 (9th Cir. 1980) (noting that a trip in an automobile

was an overt act in furtherance of conspiracy).

             Spears’ third argument simply is incorrect that it was

not   his   burden     to    prove    the   defense       of    withdrawal     from     the

conspiracy.          Withdrawal       from        a    conspiracy        “requires      the

defendant    to     take    affirmative         actions       inconsistent     with     the

object of the conspiracy and communicate his intent to withdraw

in a manner likely to reach his accomplices.”                             Cardwell, 433

F.3d at 391.        Spears did have the burden to prove the defense.

See United States v. Watford, 894 F.2d 665, 670 (4th Cir. 1990)

(stating that the burden is on the defendant to show that he

withdrew    from     the    conspiracy       by       affirmative       action);   United

States v. Urbanik, 801 F.2d 692, 697 (4th Cir. 1986) (same).

                                            3
Once    a     defendant        produces       evidence      of    withdrawal,        it    then

becomes a jury issue which the Government must prove beyond a

reasonable doubt that the defendant did not withdraw from the

conspiracy.          United States v. West, 877 F.2d 281, 289 (4th Cir.

1989).      Thus, we affirm Spears’ conviction.

               In his final argument, Spears alleges, pro se, that

his    indictment        was     defective       because      the      evidence      did    not

support his conviction under 18 U.S.C. § 115(a)(1)(A) (2006).

We     agree    with     Spears        that     evidence         did   not     support      his

conviction under § 115(a)(1)(A) or under § 115(a)(1)(B), as the

Government argues.             Rather, the evidence supports his conviction

for his unambiguous participation in the conspiracy to murder a

federal       law    enforcement       officer       in    violation     of    18    U.S.C.A.

§ 1114      (West      Supp.      2009).            The     indictment        and    criminal

conviction          properly    note    the     conspiracy        to    murder;      however,

those    documents       erroneously          cite    to    § 115(a)(1)(A),         which   is

inapplicable to the instant facts.                         Rather than dismissing the

indictment, however, this court has held that the proper remedy

in this circumstance is to vacate and remand for resentencing

under the appropriate statute.                       See United States v. Massuet,

851    F.2d    111,     115    (4th    Cir.     1988)      (noting     that    the   “proper

procedure for dealing with the problem of the erroneously cited

statute would be to remand the case for resentencing under the

proper statute”) (citation omitted); see also United States v.

                                                4
Bennett, 368 F.3d 1343, 1352-55 (11th Cir. 2004) (holding that

sufficient evidence supported a conviction for attempt to kill

an officer of the United States, under 18 U.S.C. § 1114, where

the   defendant    was     actually    charged    with     violating      18   U.S.C.

§ 115),    vacated      on     other   grounds,      543    U.S.    1110       (2005).

Accordingly, we grant Spears’ motion to file his second pro se

supplemental      brief,     vacate    Spears’    sentence,      and     remand    for

resentencing in accordance with this opinion.

            We dispense with oral argument because the facts and

legal    contentions     are    adequately     presented     in    the     materials

before    the   court    and    argument     would   not   aid     the   decisional

process.

                                                              AFFIRMED IN PART,
                                                               VACATED IN PART,
                                                                   AND REMANDED




                                         5
