November 29, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1924
UNITED STATES,
Appellee,
v.
HENRY ANTONIO SANTANA, a/k/a WILLIAM ALFREDO PANTOJAS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Chief Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Benicio Sanchez Rivera, Federal Public Defender, and Gustavo A.
Gelpi, Assistant Federal Public Defender, on brief for appellant.
Guillermo Gil, United States Attorney, Maria M. Pabon, Assistant
United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation
Counsel, on brief for appellee.
Per Curiam. 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.
1. A deported alien can violate Section 1326 in three
separate ways: if he "enters," "attempts to enter" or "is at
any time found in" the United States. See United States v.
Rodriguez, 26 F.3d 4, 8 (1st Cir. 1994).
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).
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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
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court committed no error, much less plain error, in failing
to give the requested instruction.
Affirmed. See 1st Cir. Loc. R. 27.1.
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