United States v. Santana

Opinion

USCA1 Opinion

November 29, 1995     [NOT FOR PUBLICATION]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).  
                   ____  ______


-3-



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


-4-



court committed no error,  much less plain error,  in failing



            to give the requested instruction.



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


-5-