dissenting.
I concur in all but Part II of the majority’s opinion, I dissent because I conclude there was a constructive amendment to Count 3 — not a mere variance.1
In deciding how to distinguish a constructive amendment from a mere variance, the majority favors this court’s inscrutable doctrine2 over clearer commands from the Supreme Court. Having chosen a framework to decide the issue, the majority misapplies it on its own terms. Because this topic has troubled this court for years, I offer for consideration my understanding of the doctrine.
Defendants may invoke one of three theories to complain of inconsistencies between the indictment and either the jury instructions, the proof at trial, or both: (1) actual amendment, (2) constructive amendment, or (3) variance. See, e.g., United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986) (identifying these three distinct theories). The first theory, actual amendment, traces to Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), overruled on other grounds by United States v. Cotton, 535 U.S. 625, 629-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). The grand jury indicted Bain and other bank officials for making false statements “with intent to deceive the comptroller of the currency and the agent appointed to examine the [bank’s] affairs.” Id. at 4, 7 S.Ct. 781. Thirteen months later, the prosecution moved the trial court to strike the words “the comptroller of the currency and” from the indictment. Id. at 5, 7 S.Ct. 781. The trial court granted the motion and struck the language, and Bain was convicted. The Supreme Court granted Bain’s habeas corpus petition, concluding that this rewriting of the indictment ran afoul of the Fifth Amendment’s command that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.” Id. at 6, 13-14, 7 S.Ct. 781. Specif*534ically, the conviction could not stand because the grand jury had never considered the government’s new theory that Bain had made false statements intending to deceive the agent, but not the comptroller. See id. at 13, 7 S.Ct. 781 (“[Ajfter the indictment was changed it was no longer the indictment of the grand jury who presented it.”). The Court reasoned that the grand-jury component of the Fifth Amendment checks overzealous prosecution and ensures that a citizen is not exposed to the risks and expense of a trial unless a grand jury composed of his peers determines that he should. See id. at 12, 7 S.Ct. 781 (citing Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857)); see also United States v. Beeler, 587 F.2d 340, 342 (6th Cir.1978) (noting that the most important reason for the rule barring actual and constructive amendments is “the assurance that a group of citizens independent of prosecutors or law enforcement officials have reviewed the allegations and determined that the case is worthy of being presented to a jury for a determination of the defendant’s guilt or innocence”); United States v. Moore, 129 F.3d 873, 878 (6th Cir.1997) (citing Beeler, 587 F.2d at 342).
The second theory, constructive amendment, is a legal fiction developed after Bain — a prosecutor could no longer physically rewrite the indictment, but he could still effectively rewrite the indictment by leaving its language untouched, but proposing jury instructions that embody a new theory or crime. This presents the same evil as an actual amendment: no grand jury passed on the essential description of the crime that ultimately formed the basis for conviction, a circumstance that contravenes the Fifth Amendment.3 Thus, courts developed the legal fiction of a “constructive amendment” to prevent this mischief. In Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the seminal Supreme Court case on constructive amendments, the grand jury indicted the defendant under the Hobbs Act4 for interfering with interstate commerce in sand, but the trial court permitted the government to argue that the defendant interfered with interstate commerce in steel, too, and the defendant was convicted. Id. at 213-14, 80 S.Ct. 270. The Supreme Court reversed the defendant’s conviction, noting that “[ajlthough the trial court did not permit a formal amendment of the indictment, the effect of what it did was the same.” Id. at 217, 80 S.Ct. 270. Stirone reveals two distinguishing features of a constructive amendment. First, a constructive amendment involves not just a “variation between pleading and proof,” id., but also an irregularity in the jury instructions, see id. at 219, 80 S.Ct. 270 (“[Wje cannot know whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with. Yet because of the court’s admission of evidence and under its charge this might have been the basis upon which the trial jury convicted petitioner.” (emphasis added)). Second, a constructive amendment is not amenable to harmless-error analysis. Id. at 217, 80 S.Ct. 270 (“Deprivation of such a *535basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.”).
The third theory, alluded to in Stirone, is the variance. Stirone makes clear that a variance results when there is a “variation between pleading and proof,” see id., but the jury instructions properly mirror the language of the indictment, see id. at 215, 217-18, 80 S.Ct. 270 (explaining Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1814 (1935)). In Berger, the irregularity came when the prosecution introduced proof of a second conspiracy in addition to the one charged. 295 U.S. at 79-81, 55 S.Ct. 629. The Court questioned whether the variance “affect[ed] the substantial rights” of the defendant, id. at 82, 55 S.Ct. 629, and concluded that it did not, id. at 83-84, 55 S.Ct. 629. Berger confirms that a variance has nothing to do with the defendant’s Fifth Amendment grand jury right: the Court never mentioned the concept. Instead, a variance issue turns on whether the defendant (1) has sufficient notice of the allegations to mount a defense, and (2) will be protected against double jeopardy. Id. at 82, 55 S.Ct. 629. These lesser concerns require reversal only if the defendant shows prejudice to a substantial right. Id.
These three cases demonstrate that distinguishing a constructive amendment from a variance requires review of the jury instructions. When the jury instructions mirror the indictment and the defendant claims only that the proof at trial diverged from the indictment, he can complain only of a variance and must show prejudice. But when the jury instructions do not mirror the indictment — as was true in Budd’s case — the defendant’s claim is properly categorized under the “constructive amendment” rubric.5 - Although Budd’s indictment charged him with violating 18 U.S.C. § 242 by depriving inmate Moore of his Fourteenth Amendment rights, the court instructed the jury to convict if it found that Budd violated 18 U.S.C. § 242 by depriving Moore of his Eighth Amendment rights. In other words, after the government secured an indictment premised on a Fourteenth Amendment deprivation, it switched theories and tried the case — jury instructions and all — based on an Eighth Amendment deprivation. Following this circuit’s rule that a constructive amendment is per se prejudicial, see, e.g., United States v. Prince, 214 F.3d 740, 757 (6th Cir.2000) (collecting cases), I would reverse Budd’s conviction on this count and remand for resentencing.
The majority avoids the three Supreme Court cases I describe above and instead attempts to draw from this court’s precedent a principle that “a variance in some cases is not different in kind from a constructive amendment, but merely in degree; if it is serious enough, it becomes a constructive amendment.”6 Ante at 521. For two reasons, I cannot agree. First, the concepts of “variance” and “constructive amendment” differ in kind, not degree: either the jury instructions mirror the indictment, or they do not. The principle identified by the majority likely results from loose language in past cases; that is, labeling what is actually just a prejudicial variance a “constructive amendment.” If *536the court reverses based only on irregularities of proof, it is because the variance prejudiced the defendant’s substantial rights, not because it was a constructive amendment. Second, the practical implications of a framework where a variance can “rise to the level” of a constructive amendment reveal its flaw. Presumably, under the majority’s framework, the defendant must show that a supposed variance “rose to the level” of a constructive amendment by showing that he was actually prejudiced. If the defendant must show actual prejudice to get per se treatment, this would eliminate the need for even the concept of prejudice per se — every case would turn on whether the defendant had shown “enough” actual prejudice.
The majority ultimately turns to Martin, Prince, and Suarez to decide whether the irregularities in this case represented a variance or a constructive amendment, inquiring “whether the jury instruction and evidence introduced another crime or an ‘alternative method [ ] by which the one crime ... could have been committed.’ ” Suarez, 263 F.3d at 478 (quoting Prince, 214 F.3d at 758). It finds a mere variance, concluding that violating Moore’s Fourteenth Amendment rights is merely an “alternative method” by which Budd could have violated 18 U.S.C. § 242. I cannot agree. Moore was a convicted inmate whose rights against excessive force sound exclusively in the Eighth Amendment,7 so the only “method” by which Budd could have violated 18 U.S.C. § 242 would have been by depriving Moore of his Eighth Amendment rights against cruel and unusual punishment. Depriving Moore of Fourteenth Amendment rights against excessive force amounting to punishment— rights that, based on his inmate status, Moore dogs not even have — simply is not a “method” by which Budd could have violated 18 U.S.C. § 242.8
*537In the last few paragraphs of Part II, the majority appears to dismiss any irregularity in this case by reasoning that the “evidence” or “proof’ presented to the grand jury would have been the same whether the indictment had charged an Eighth or Fourteenth Amendment deprivation. Ante at 526-27. I respectfully suggest that by focusing on Budd’s actions and ignoring his mental state, the majority misses the point. The grand jury never decided that Budd should stand trial for using “malicious and sadistic” or “unnecessary and wanton” excessive force on inmate Moore. See Bain, 121 U.S. at 10-13, 7 S.Ct. 781 (discussing the protection afforded by the grand jury). And although widespread experience suggests that the grand jury was unlikely to tarry over mens rea subtleties,9 the Supreme Court has explicitly forbidden us from speculating on subjects such as whether the grand jury would have indicted Budd for an Eighth Amendment deprivation just as it actually indicted him for a Fourteenth Amendment deprivation. As the Court said in Russell v. United States,
To allow ... the court [ ] to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure .... This underlying principle is reflected by the settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form.
369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (citing Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, and Stirone, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252). No grand jury ever concluded that Budd should stand trial for the more-serious level of excessive force that the government needed to prove to the petit jury, and this contravenes the Fifth Amendment. I respectfully dissent.
. Because I would reverse based on a constructive amendment to Count 3, I would not reach the issues discussed in Part VI of the majority’s opinion. That said, I agree with the substance of the majority's analysis.
. United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir.2002) ("[T]he distinction between a variance and a constructive amendment is sketchy.”); United States v. Hathaway, 798 F.2d 902, 910 (6th Cir.1986) ("[T]he distinction between a variance and a constructive amendment is at best ‘shadowy.... ’ ”).
. Of course, correction of a scrivener’s error presents no problem. See, e.g., Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) ("[A]n indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form." (citing Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849) (emphasis added)).
. That statute provided that "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion” shall be fined or imprisoned, or both. 18U.S.C. § 1951(a).
. The proof invariably will differ too — after all, the prosecution has to prove its new theory-but this proof aspect is not the crucial distinction.
. I assume the majority traces this principle to cases framing the question as whether a variance "rose to the level” of a constructive amendment. See, e.g., United States v. Hynes, 467 F.3d 951, 962 (6th Cir.2006); United States v. Barrow, 118 F.3d 482, 489 (6th Cir.1997).
. See, e.g., Gravely v. Madden, 142 F.3d 345, 348-49 (6th Cir.1998) (noting that Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986), "made it clear that the legal status of the victim of the excessive force determines whether the Fourth, the Eighth, or the Fourteenth Amendment governs his excessive force claims”); Pelfrey v. Chambers, 43 F.3d 1034, 1036-37 (6th Cir.1995) (noting that after Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), convicted prisoners may raise excessive-force claims only under the Eighth Amendment); Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir.1992) ("Since [convicted prisoner] Corn-well’s excessive force claim ... can only be properly considered under the Eighth Amendment [after Graham v. Connor ], we hold that the district court erred in submitting this claim of excessive force to the jury under the Fourth Amendment.”).
. In Hynes, this court offered another formulation for distinguishing a variance from a constructive amendment. The majority mentions Hynes, ante at 522, but quickly brushes it aside, apparently reasoning that Hynes applies only in cases where "the difference between indictment and jury instructions is not the facts of the offense, but the legal theory,” ante at 522. Again, I respectfully disagree. Hynes posits that a constructive amendment results " 'when an indictment's terms are effectively altered by the presentation of evidence and jury instructions that so modify essential elements of the offense charged that there is a substantial likelihood the defendant [was] convicted of an offense other than that charged in the indictment.' ” 467 F.3d at 961—62 (quoting United States v. Combs, 369 F.3d 925, 936 (6th Cir.2004)). This clearly seems to cover situations where the inconsistency lies not only in the facts, but also in the legal theory. And applying this formulation to Budd’s case also dictates the conclusion that there was a constructive amendment to his indictment. The inconsistency between the jury instructions' Eighth Amendment language ("malicious and sadistic” or "unnecessary and wanton”) and the indictment's Fourteenth Amendment language ("excessive force that amounts to punishment”) plainly modified the mens rea element: it is more difficult to establish that a corrections officer acted "maliciously and sadistically” toward an inmate — who constitutionally may be punished — than to prove that the officer's con*537duct toward a pretrial detainee "amounted to punishment.” E.g., Phelps v. Coy, 286 F.3d 295, 299 (6th Cir.2002) ("The question of which amendment supplies Phelps’s rights is not merely academic, for the standards of liability vary significantly according to which amendment applies.”).
. Empirically, the grand jury returns an indictment in the overwhelming majority of cases. See, e.g., United States v. Navarro-Vargas, 408 F.3d 1184, 1195 & nn. 14-15 (9th Cir.2005) (en banc). Colloquially, “a grand jury would indict a ham sandwich.” E.g., id. at 1195.