Notice: First Circuit Local Rule 36.2(b)6 States Unpublished Opinions May Be Cited Only in Related Cases.united States, Appellee, v. Henry Antonio Santana, A/k/a William Alfredo Pantojas,defendant, Appellant, 70 F.3d 1253 (1st Cir. 1995)

Appellant Henry Antonio Santana appeals his conviction on the charge of attempting to reenter the United States, after previously having been deported, without having obtained the permission of the Attorney General. Appellant alleges that: (1) the government and court constructively amended the indictment against him; and (2) the court erred in failing to give the proper jury instructions. We affirm.

Appellant was charged in a one count indictment with illegally reentering the United States in violation of 8 U.S.C. § 1326. At trial, appellant moved for a judgment of acquittal on the ground that the government had constructively amended the indictment since the evidence showed that appellant was guilty at most of attempted reentry not the reentry for which he had been indicted. The court agreed with appellant that the facts presented at trial supported only a charge of attempted reentry. The court, however, denied the motion for acquittal. The court reasoned that the difference between the indictment and the proof at trial amounted only to a nonprejudicial variance.¹  Subsequently, the court instructed the jury as if the crime charged were attempted reentry.

The determinative issue in this case is whether the difference between the indictment and the proof offered at trial amounted to a constructive amendment or to a variance. The former is grounds for reversal per se. United States v. Fisher, 3 F.3d 456, 463 (1st Cir. 1993). The latter is grounds for reversal only if it affects a defendant's substantial rights. Id. Appellant does not contend that the differences in proof affected his substantial rights.

No constructive amendment occurred in the instant case. A constructive amendment of an indictment occurs when the evidence at trial and/or jury instructions "broaden [ ] the possible bases for conviction from that which appeared in the indictment." United States v. Miller, 471 U.S. 130, 138 (1985) (emphasis in original); see also United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994); United States v. Rosenthal, 9 F.3d 1016, 1021 (2d Cir. 1993); United States v. Kramer, 955 F.2d 479, 487 (7th Cir.), cert. denied, 113 S. Ct. 595 (1992); United States v. Wright, 932 F.2d 868, 864 (10th Cir.), cert. denied, 502 U.S. 962 (1991). A constructive amendment violates both a defendant's fifth amendment right to be tried only on the charge made by the grand jury and his sixth amendment right to be informed of the charges against him. United States v. Kelly, 722 F.2d 873, 876 (1st Cir. 1983), cert. denied, 465 U.S. 1070 (1984).

Appellant was indicted for illegal reentry after having been deported. He was convicted of the attempt to reenter after having been deported. As appellant concedes, the latter is a lesser included offense of the former. See United States v. Anderson, 987 F.2d 251, 254 (9th Cir.), cert. denied, 114 S. Ct. 157 (1993). By indicting appellant for illegal reentry, the grand jury then necessarily charged all the elements of the offense for attempted reentry as well. Since the different proof at trial did not add to the elements of the offense charged, appellant was not convicted of a crime not charged in the indictment. Nor can he reasonably have been unaware of the nature of the accusation against him. See United States v. Arcadipane, 41 F.3d 1, 6 (1st Cir. 1994) (no material prejudice as long as the indictment gives defendant notice of the events charged and the proof at trial centers on the same events).

Appellant also claims the court erred by not instructing the jury to consider whether he attempted to reenter the country only after the jury had considered whether he had in fact reentered the country as charged in the indictment. Appellant did not object to the charge given. Therefore, our review is limited to plain error. United States v. Andujar, 49 F.3d 16, 22 (1st Cir. 1995).

Since the evidence presented at trial did not support a finding that appellant reentered the country illegally, the court committed no error, much less plain error, in failing to give the requested instruction.

Affirmed. See 1st Cir. Loc. R. 27.1.