United States v. Taylor

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20501 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN ANTHONY TAYLOR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-553-2 -------------------- January 23, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

John Anthony Taylor has appealed his convictions for bank

robbery and aiding and abetting; using, carrying, and brandishing

a firearm during a crime of violence; armed bank robbery; and

using and carrying a firearm during a crime of violence.

Taylor contends that his convictions should be reversed because

the district court constructively amended the superseding

indictment by submitting jury instructions that permitted the

jury to convict him for an offense not charged in the indictment.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-20501 -2-

Because he did not object to the district court's special

instructions, Taylor concedes that this issue should be reviewed

for plain error. See United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994) (en banc); see also United States v.

Olano, 507 U.S. 725, 730-35 (1993). Although the district

court's instruction arguably broadened the superseding

indictment, we decline to exercise our discretion to correct the

error. See United States v. Fletcher, 121 F.3d 187, 192-93 (5th

Cir. 1997); United States v. Reyes, 102 F.3d 1361, 1364-66 (5th

Cir. 1996).

AFFIRMED.