                      FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                    No. 15-10402
           Plaintiff-Appellee,
                                                DC No.
                 v.                         CR 12-0056 AWI

 RICKY DAVIS, AKA Rick
 Dog, AKA Ricky Loks,                            OPINION
        Defendant-Appellant.


        Appeal from the United States District Court
           for the Eastern District of California
        Anthony W. Ishii, District Judge, Presiding

          Argued and Submitted February 16, 2017
                 San Francisco, California

                       Filed April 14, 2017

   Before: A. Wallace Tashima and Andrew D. Hurwitz,
   Circuit Judges, and Lynn S. Adelman,* District Judge.

                   Opinion by Judge Tashima




     *
       The Honorable Lynn S. Adelman, United States District Judge for
the Eastern District of Wisconsin, sitting by designation.
2                    UNITED STATES V. DAVIS

                            SUMMARY**


                            Criminal Law

    The panel affirmed a conviction for sexual exploitation of
a minor in violation of 18 U.S.C. § 2251(a), reversed a
conviction for attempted sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a), vacated the sentence, and
remanded for further proceedings.

    The panel held that a constructive amendment of the
indictment occurred, where the § 1591(a) charge required the
government to prove beyond a reasonable doubt that the
defendant affirmatively knew of the minor’s age or that he
recklessly disregarded her minority status, but the jury
instructions and the government’s closing argument stated
that the jurors could convict, even without a finding as to
knowledge or recklessness, so long as they determined that
the defendant had a reasonable opportunity to observe the
minor. The panel remanded to the district court for
resentencing on an open record or, alternatively, for the
defendant to be retried on the § 1591(a) charge.

    The panel addressed other arguments in a concurrently
filed memorandum.




    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    UNITED STATES V. DAVIS                          3

                           COUNSEL

Peggy Sasso (argued), Assistant Federal Defender; Heather
E. Williams, Federal Defender; Office of the Federal Public
Defender, Fresno, California; for Defendant-Appellant.

Brian W. Enos (argued), Assistant United States Attorney;
Camil A. Skipper, Assistant United States Attorney &
Appellate Chief; Phillip A. Talbert, Acting United States
Attorney; United States Attorney’s Office, Fresno, California;
for Plaintiff-Appellee.


                            OPINION

TASHIMA, Circuit Judge:

    Ricky Davis appeals his convictions for sexual
exploitation and attempted sex trafficking of a minor, as well
as the resulting sentence. We have jurisdiction under
28 U.S.C. § 1291. We affirm Davis’ conviction for sexual
exploitation of a minor, but we reverse his conviction for
attempted sex trafficking.1

                                  I.

   On September 17, 2011, Ricky Davis brought thirteen-
year-old Bianca to his house. Once there, he discussed the
possibility of Bianca making money by going on dates, took
sexually explicit photos of her, helped to post these images on
a website known for advertising escort services, and

    1
      In a concurrently filed memorandum, we address and reject Davis’
arguments not addressed in this opinion.
4                UNITED STATES V. DAVIS

introduced Bianca to at least one individual with whom
Bianca later had sex in exchange for money. Some months
later, after two different men had trafficked Bianca, law
enforcement discovered the sexually explicit photographs and
arrested Davis.

    Davis was indicted for (1) sexual exploitation of a minor,
in violation of 18 U.S.C. § 2251(a), and (2) attempted sex
trafficking either by force or of a minor, in violation of
18 U.S.C. §§ 1591(a), 1594. Davis was convicted on both
counts. The district court sentenced him to concurrent 300-
month terms of imprisonment.

    This appeal followed. Davis challenges his conviction
under § 1591(a) on the ground that the district court’s jury
instruction constructively amended the indictment.

                             II.

   “When [as in this case] a defendant raises a constructive
amendment claim before the district court, we review de
novo.” United States v. Ward, 747 F.3d 1184, 1188 (9th Cir.
2014).

                             III.

A. A Constructive Amendment Occurred.

    “The Fifth Amendment’s grand jury requirement
establishes the ‘substantial right to be tried only on charges
presented in an indictment returned by a grand jury.’” United
States v. Antonakeas, 255 F.3d 714, 721 (9th Cir. 2001)
(quoting United States v. Miller, 471 U.S. 130, 140 (1985)).
“A constructive amendment occurs when the charging terms
                  UNITED STATES V. DAVIS                      5

of the indictment are altered, either literally or in effect, by
the prosecutor or a court after the grand jury has last passed
upon them.” Ward, 747 F.3d at 1190 (internal quotation
marks and citation omitted). There are two types of
constructive amendment: first, where “there is a complex of
facts [presented at trial] distinctly different from those set
forth in the charging instrument,” and, second, where “the
crime charged [in the indictment] was substantially altered at
trial, so that it was impossible to know whether the grand jury
would have indicted for the crime actually proved.” United
States v. Adamson, 291 F.3d 606, 615 (9th Cir. 2002)
(quoting United States v. Von Stoll, 726 F.2d 584, 586 (9th
Cir. 1984)). Here, we are concerned with the second type of
amendment.

    Our decision in United States v. Dipentino, 242 F.3d 1090
(9th Cir. 2001), is an instructive example of the second
category. In Dipentino, the Court considered a constructive
amendment challenge to a conviction for violations of the
Clean Air Act. Id. at 1093–94. The indictment charged that
the defendants had:

       . . . caused quantities of scraped and/or loose
       asbestos-containing debris to be left on floors
       and other surfaces where such debris was
       allowed to dry, instead of causing all such
       debris to be gathered, while wet, and placed in
       leak-proof containers or wrappings to be
       removed from the site, as required by work
       practice standards promulgated pursuant to
       the Clean Air Act.

Id. at 1094–95. When instructing the jury, however, the
district court defined the charged offense as one in which the
6                 UNITED STATES V. DAVIS

defendants “knowingly failed . . . to comply with the work
practice standards alleged in the indictment.” Id. at 1095.
Critically, the district court then defined the relevant work
practice standards as requiring that “[a]ll asbestos-containing
waste material shall be deposited as soon as is practical by the
waste generator at a waste disposal site that meets appropriate
federal requirements.” Id.

    Because the conduct charged in the indictment was
substantially different from the conduct described in the jury
instructions, we concluded that “[i]t is evident that the district
court constructively amended the indictment because the jury
instruction permitted the jury to convict the defendants of
violating a work practice standard they were not charged in
the indictment with violating[.]” Id.

   This case is closely analogous to Dipentino. Here, Count
2 of the indictment charges that Davis violated § 1591(a)
when he:

        . . . knowingly attempted to recruit, entice,
        harbor, transport, provide, obtain, and
        maintain by any means, a person to engage in
        a commercial sex act, to wit: a minor female
        victim, . . . knowing or in reckless disregard
        of the fact that the person had not attained the
        age of 18 years[.]

(Emphasis added.) At trial, however, the jury instruction as
to Count 2 provided, in relevant part:

        The elements of sex trafficking are: . . .
        (2) knowing that Bianca had not attained the
        age of 18 years, or recklessly disregarded that
                    UNITED STATES V. DAVIS                            7

         fact, or the defendant had a reasonable
         opportunity to observe Bianca, and that
         Bianca would be caused to engage in a
         commercial sex act . . . [.]

(Emphasis added.) Elsewhere in the same instruction, the
district court charged:

         In Count 2 of the Indictment, the defendant is
         charged with Attempted Sex Trafficking of
         Children. For the defendant to be found
         guilty, the Government need not prove that
         the defendant knew Bianca had not attained
         the age of 18 so long as the defendant had a
         reasonable opportunity to observe Bianca.2
         (Emphasis added.)

In its closing argument, the government adopted much the
same approach, arguing:

         [W]e, again, submit that the evidence shows
         both, that Bianca had not attained the age of
         18, or the defendant recklessly disregarded
         that fact, or he had a reasonable opportunity
         to observe Bianca, and that she would be
         caused to engage in a commercial sex act.

(Emphasis added.)



    2
      The italicized language is taken from § 1591(c), which further
provides that if the government proves the “reasonable opportunity to
observe” prong, it is relieved from proving the defendant’s knowledge or
recklessness regarding the victim’s minority.
8                 UNITED STATES V. DAVIS

    It is evident that the language of the indictment differs
substantially from the jury instruction and the government’s
closing argument. Specifically, the indictment charged that
Davis knew Bianca was a minor or that he recklessly
disregarded this fact. Thus, under the indictment, the
government was required to prove, beyond a reasonable
doubt, either that Davis affirmatively knew of Bianca’s age,
or, alternatively, that he recklessly disregarded her minority
status. In contrast, the jury instructions afforded jurors a
third option for convicting Davis: namely, they could
convict, even without a finding as to knowledge or
recklessness, so long as they determined that Davis “had a
reasonable opportunity to observe Bianca.”

    We thus conclude that a constructive amendment
occurred because “the crime charged [in the indictment] was
substantially altered at trial, so that it was impossible to know
whether the grand jury would have indicted for the crime
actually proved.” Adamson, 291 F.3d at 615. See also United
States v. Stewart Clinical Lab, Inc., 652 F.2d 804, 807 (9th
Cir. 1981) (“The court may not substantially amend the
indictment through its instructions to the jury.” (citations
omitted)). Our holding today is consistent with United States
v. Lockhart, 844 F.3d 501 (5th Cir. 2016), the facts of which
are indistinguishable from this case. There, the Fifth Circuit
observed:

            By including the language found in
        § 1591(c), the district court materially
        modified an essential element of the
        indictment by transforming the offense with
                  UNITED STATES V. DAVIS                       9

        which the indictment charged [the defendant]
        from one requiring specific mens rea into a
        strict liability offense.

Id. at 515–16 (footnote and citation omitted). We agree.

B. Davis’ Conviction Under § 1591(a) Must Be Reversed.

    “Objections that the trial court improperly instructed the
jury about the contents of the indictment generally fall into
one of two categories: a constructive amendment or a
variance.” Ward, 747 F.3d at 1189. And, while “[t]he line
that separates a constructive amendment from a variance is
not always easy to define,” id., drawing this distinction is
nevertheless critical. This is because “a constructive
amendment typically mandates reversal, while ‘a variance
requires reversal only if it prejudices a defendant’s substantial
rights.’” Id. (citing Adamson, 291 F.3d at 615, and
Antonakeas, 255 F.3d at 722). We have also held that
“amending the indictment to charge a new crime constitutes
a per se reversible error.” Stewart Clinical, 652 F.2d at 807.
See also United States v. Olson, 925 F.2d 1170, 1175 (9th
Cir. 1991) (“An amendment always requires reversal, because
it deprives a defendant of his right to be tried on the grand
jury’s charge.”), abrogated in part by United States v. Cotton,
535 U.S. 625, 630 (2002).

   We have previously articulated the distinction between a
constructive amendment and a variance:

        An amendment of the indictment occurs when
        the charging terms of the indictment are
        altered, either literally or in effect, by the
        prosecutor or a court after the grand jury has
10                UNITED STATES V. DAVIS

       last passed upon them. A variance occurs
       when the charging terms of the indictment are
       left unaltered, but the evidence at trial proves
       facts materially different from those alleged in
       the indictment.

Von Stoll, 726 F.2d at 586 (quoting United States v.
Cusmano, 659 F.2d 714, 718 (6th Cir. 1981) (citations
omitted)). Here, the district court’s jury instruction and the
government’s argument had the effect of altering the terms of
the indictment.

    Thus, the district court’s error here is properly
characterized as a constructive amendment, not as a mere
variance. As a result, Davis’ conviction under § 1591(a) must
be reversed. See Ward, 747 F.3d at 1189 (citing Adamson,
291 F.3d at 615, and Antonakeas, 255 F.3d at 722).

C. Remand for Resentencing is Required.

    The district court sentenced Davis to 300 months’
imprisonment for each count of his conviction, with the terms
to run concurrently. Although we affirm Davis’ conviction
under § 2251 in our concurrently-filed memorandum,
“[w]hen a defendant is sentenced on multiple counts and one
of them is later vacated on appeal, the sentencing package
comes ‘unbundled.’” United States v. Ruiz-Alvarez, 211 F.3d
1181, 1184 (9th Cir. 2000). Under these circumstances,
vacating the sentence is required in order to allow the district
court “to put together a new package reflecting its considered
judgment as to the punishment the defendant deserve[s] for
the crimes of which he . . . [remains] . . . convicted.” Id.
(quoting United States v. McClain, 133 F.3d 1191, 1193 (9th
Cir. 1998) (other citations omitted)).
                    UNITED STATES V. DAVIS                          11

    We remand to the district court for resentencing on Davis’
single remaining conviction on an open record or,
alternatively, for Davis to be retried on the § 1591(a) charge.3

                                 IV.

    We thus (1) affirm Davis’ conviction under § 2251,
(2) reverse his conviction under § 1591(a) on grounds of
constructive amendment, (3) vacate the sentence, and
(4) remand to the district court for further proceedings
consistent with this opinion.

  AFFIRMED in part, REVERSED in part, sentence
VACATED, and REMANDED.




    3
     Because we reverse Davis’ § 1591(a) conviction on the constructive
amendment ground, we need not reach his other challenges to that
conviction. We also do not reach Davis’ arguments challenging the
propriety or reasonableness of his now-vacated sentence.
