                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA ,               No. 08-15634
                Plaintiff-Appellee,
                                           D.C. Nos.
                v.                      2:04-CV-02090-
                                           FCD-CMK
JOHN WESLEY JINGLES,                    2:98-CR-00431-
             Defendant-Appellant.          FCD-CMK

                                           ORDER
                                         AMENDING
                                        OPINION AND
                                         AMENDED
                                          OPINION

      Appeal from the United States District Court
         for the Eastern District of California
   Frank C. Damrell, Senior District Judge, Presiding

              Argued March 13, 2012
  Submitted June 8, 2012—San Francisco, California

                 Filed June 8, 2012
             Amended November 19, 2012

    Before: J. Clifford Wallace, Dorothy W. Nelson,
           and Carlos T. Bea, Circuit Judges.
2                  UNITED STATES V . JINGLES

                         Order;
             Amended Opinion by Judge Wallace


                           SUMMARY*


                          Habeas Corpus

    The panel affirmed the district court’s denial of a
28 U.S.C. § 2255 motion to set aside convictions and
sentences for two counts of possession with intent to
distribute cocaine base.

    Jingles contended in his § 2255 motion that the verdict
forms constructively amended the indictment in violation of
his Fifth Amendment rights by asking the jury to determine
whether the substance he possessed was cocaine base, and to
determine the amount of that substance, even though the
indictment charged only that he possessed with intent to
distribute a certain amount of cocaine.

    The panel first held that Jingles had not procedurally
defaulted his claim because, although he framed the issue on
direct appeal as a variance claim, the substance of that
argument was that the indictment was constructively
amended. The panel concluded that a previous panel of the
court resolved Jingles’s constructive amendment claim by
necessary implication when it concluded that the variance
was harmless because the indictment gave Jingles adequate
notice that he was being charged with possession of cocaine

  *
    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 . JINGLES                     3

base. The panel held that it was precluded from reexamining
the issue under the law of the case doctrine. The panel
explained that no exception to the law of the case doctrine
applied because, even assuming that the previous panel’s
decision was clearly erroneous, its enforcement would not
work any manifest injustice, because even without Jingles’s
conviction on those two counts, he would still have been
subject to a life sentence and concurrent 520-year determinate
term on other counts, and Jingles failed to identify any real
collateral consequences resulting from the convictions.


                         COUNSEL

Krista Hart, Sacramento, California, for Plaintiff-Appellant

Benjamin B. Wagner, United States Attorney; Jared C. Dolan
(argued), Assistant United States Attorney, Sacramento,
California, for Defendant-Appellee


                           ORDER

    The court’s opinion filed June 8, 2012, is amended as
follows: on slip opinion page 6521, line 16, replace “Like the
petitioner in Cotton, Jingles did not preserve the issue in the
district court, so like the claim in Cotton, Jingles’s claim is
subject to plain error review.” with “Like the petitioner in
Cotton, Jingles did not preserve the issue in the district court,
so like the claim in Cotton, Jingles’s claim was subject to
plain error review.”
4                UNITED STATES V . JINGLES

                   AMENDED OPINION

WALLACE, Senior Circuit Judge:

    Defendant-Appellant Jingles appeals from the denial of
his motion to set aside his convictions and sentences for two
counts of possession with intent to distribute cocaine base
under 28 U.S.C. § 2255. We have jurisdiction under
28 U.S.C. § 2253. We affirm.

    After a jury trial, Jingles was convicted of a number of
offenses relating to his participation in a conspiracy to traffic
cocaine and cocaine base. The district judge sentenced Jingles
to imprisonment for an aggregate term of 6,240 months (520
years) on the bulk of his counts, and to three terms of life
imprisonment on counts two, twenty-one, and twenty-two. On
direct appeal, we affirmed the judgment. See United States v.
Jingles (Jingles II), 64 F. App’x 82 (9th Cir. 2003) (mem.)
(vacating and remanding sentence only to delete certain
multiplicitous counts that did not affect the overall sentence).
Acting pro se, Jingles subsequently filed a motion to correct
or set aside the judgment pursuant to 28 U.S.C. § 2255. The
United States Magistrate Judge (MJ) who first considered the
motion recommended that it be denied. Jingles objected to the
MJ’s findings and recommendations, and the district court
reviewed the motion de novo. The district court ultimately
adopted the MJ’s findings and recommendations in full and
denied the motion.

   Jingles sought a certificate of appealability from us
pursuant to 28 U.S.C. § 2253(c). A motions panel of our court
granted the certificate on the following issue: “whether the
verdict forms in connection with counts twenty-one and
twenty-two constructively amended the indictment in
                UNITED STATES V . JINGLES                   5

violation of appellant’s Fifth Amendment rights, including
whether appellant procedurally defaulted this issue.” Order at
1–2 (Sept. 18, 2009). Before we reach that question, we must
decide whether Jingles presented this issue in his direct
appeal. If so, we must decide whether the previous panel’s
decision rejecting the claim constitutes the law of the case
and whether this would forbid Jingles’s present collateral
attack.

                              I.

    Counts twenty-one and twenty-two of the superceding
indictment charged Jingles with “Possession of Cocaine with
Intent to Distribute.” Count twenty-one charged:

       THAT JOHN WESLEY JINGLES, defendant
       herein, on an unknown date between on or
       about January 1 1996, and on or about June
       30, 1996, in the State and Eastern District of
       California, did knowingly and intentionally
       possess with intent to distribute in excess of
       500 grams of cocaine, a Schedule II controlled
       substance, in violation of Title 21, United
       States Code, Section 841(a)(1).

Superceding Indictment at 23, United States v. Jingles
(Jingles I), No. 2:98-cr-431-FCD (E.D. Cal. Sept. 3, 1999).
Count twenty-two was identical to count twenty-one, except
that it charged a violation “between on or about January 1,
1996, and on or about June 30, 1998.” Id. At trial, the judge
gave the jury the following verdict form with three special
interrogatories:
6            UNITED STATES V . JINGLES

    AS TO COUNT TWENTY-ONE OF THE
             INDICTMENT:

    ____________________GUILTY/NOT
    GUILTY of a violation of Title 21 U.S.C.
    § 841(a)(1) - Possession of Cocaine with
    Intent to Distribute

    1. If your verdict as to Count Twenty-One is
       GUILTY, do you find beyond a
       reasonable doubt that the defendant
       possessed with intent to distribute cocaine
       powder or cocaine base?

       COCAINE POWDER            ____________
                                 YES/NO
       COCAINE BASE              ____________
                                 YES/NO

    2. If you find that it was cocaine base, do
       you find beyond a reasonable doubt that
       the defendant possessed with intent to
       distribute 50 grams or more of a mixture
       or substance containing a detectable
       amount of cocaine base?
                                ____________
                                YES/NO

    3. If your verdict as to Count Twenty-One is
       GUILTY, but you do not find beyond a
       reasonable doubt that the defendant
       possessed with intent to distribute 50
       grams or more of a mixture or substance
       containing a detectable amount of cocaine
                   UNITED STATES V . JINGLES                          7

             base, do you find beyond a reasonable
             doubt that the defendant possessed with
             intent to distribute 5 grams or more of a
             mixture or substance containing a
             detectable amount of cocaine base?
                                     ____________
                                     YES/NO

Verdict at 11–12, Jingles I, No. 2:98-cr-431-FCD (June 1,
2001). The form of the verdict for count twenty-two was
identical to the form of count twenty-one. The jury found
Jingles guilty on both counts. As to the first special
interrogatory, the jury responded on both counts that it did
not find Jingles possessed cocaine powder and that it did find
he possessed cocaine base. The jury answered “yes” to the
second interrogatory on both counts. Accordingly, the jury
did not answer the third special interrogatory on either count.

     Possession with intent to distribute in excess of 500 grams
of cocaine1 is a violation of 21 U.S.C. § 841(a) punishable by
imprisonment for a term not less than 5 years and not more
than 40 years. 21 U.S.C. § 841(b)(1)(B)(ii)(II). Possession
with intent to distribute in excess of 50 grams of cocaine base
is also a violation of 21 U.S.C. § 841(a). However, at the time




  1
    “Cocaine base” as used in the indictment is not merely a type of the
more general substance “cocaine.” Rather, in the indictment, the word
“cocaine” by itself clearly refers to “cocaine powder,” while “cocaine
base” refers to crack cocaine and related drugs. As the Supreme Court
recently explained, the two forms are chemically different. See DePierre
v. United States, 131 S. Ct. 2225, 2228 (2011).
8                   UNITED STATES V . JINGLES

of Jingles’s alleged crime,2 such a violation carried a
minimum prison sentence of ten years and a maximum
sentence of life imprisonment. 21 U.S.C. § 841(b)(1)(A)(iii).
Jingles received the maximum sentence of life imprisonment
on both counts.

                                    II.

    Jingles did not object to the jury verdict at trial.
Therefore, if he raised the claim on direct appeal, it was
subject to review only for plain error. Fed. R. Crim. P. 52(b);
see also United States v. Cotton, 535 U.S. 625, 631 (2002).
The government argues that Jingles raised the issue on direct
appeal and that the court rejected his argument. Jingles, on
the other hand, argues that his appellate counsel failed to raise
the issue.

    If Jingles did raise this issue on direct appeal and the
previous panel addressed it, then that decision is the law of
the case. See In re Rainbow Magazine, Inc., 77 F.3d 278, 281
(9th Cir. 1996) (“[T]he decision of an appellate court on a
legal issue must be followed in all subsequent proceedings in
the same case” (quoting Herrington v. Cnty. of Sonoma,
12 F.3d 901, 904 (9th Cir. 1993))); see also Odom v. United
States, 455 F.2d 159, 160 (1972) (“The law in this circuit is
clear that when a matter has been decided adversely on appeal
from a conviction, it cannot be litigated again on a 2255


    2
    The statute has since been amended to increase the threshold quantity
for cocaine base to 280 grams. All citations to 21 U.S.C. § 841 refer to the
versions in force between January 1, 1996 and June 30, 1998 (the period
during which Jingles was charged to have committed his crimes). During
that period, the statute was amended twice, but neither of those
amendments affected the provisions relevant to Jingles.
                 UNITED STATES V . JINGLES                    9

motion”). On the other hand, if Jingles did not raise this issue
but could have, then we must determine whether the default
precludes him from raising the issue now. See United States
v. Bousley, 523 U.S. 614, 621 (1998) (“Habeas review is an
extraordinary remedy and will not be allowed to do service
for an appeal” (internal quotation marks omitted)).

    On direct appeal, Jingles argued that the trial court
committed plain error when it presented verdict forms for
counts twenty-one and twenty-two that allowed the jury to
convict on the basis of finding that Jingles possessed with
intent to distribute in excess of 50 grams of cocaine base,
even though the indictment charged only that he possessed
with intent to distribute in excess of 500 grams of cocaine.
See Brief for Appellant at 24–27, Jingles II, 64 F. App’x 82
(No. 01-10703), 2002 WL 32113506 at *24–27. Jingles
argued,

           In this case, the government indicted
       appellant in two counts for a violation of
       section 841(a)(1) based upon 500 grams of
       cocaine. Yet the district court, in turn,
       sentenced appellant to a life term based upon
       the jury’s finding that appellant possessed in
       excess of 50 grams of cocaine base.
       Consequently, appellant received a sentence
       for a crime with which he was not charged,
       and was not convicted.

           The Fifth Amendment to the United States
       Constitution requires that “no person shall be
       held to answer for a capital, or otherwise
       infamous crime, unless on a presentment or
       indictment of a Grand Jury.” The Supreme
10               UNITED STATES V . JINGLES

        Court has explained, “that a court cannot
        permit a defendant to be tried on charges that
        are not made in the indictment against him,”
        United States v. Stirone, 361 U.S. 212, [217]
        (1960).

Id. at 25. Jingles went on to argue that the district court
lacked jurisdiction to try him for the cocaine base offense
because that offense was not included in the indictment. Id.
at 26. He concluded,

        What was alleged here, and what defendant
        was sentenced for are two different crimes
        and the district court exceeded its jurisdiction
        in sentencing appellant for a crime with which
        he was never charged, thus depriving him of
        the constitutional right to “answer” only for
        those crimes presented to the grand jury.

Id. at 27.

    As on direct appeal, the thrust of Jingles’s argument in his
collateral attack is that his convictions on counts twenty-one
and twenty-two violated the Fifth Amendment’s indictment
requirement under United States v. Stirone, 361 U.S. 212
(1960). There are few differences between Jingles’s previous
argument and his current one. On direct appeal, Jingles
characterized the alleged Constitutional violation as a “fatal
variance” from the indictment, see Brief for Appellant at 24,
Jingles II, 64 F. App’x 82, whereas now he characterizes the
alleged violation as a “constructive[] amend[ment]” to the
indictment. Also, Jingles no longer argues that the district
court lacked jurisdiction. Rather, he argues that the
                 UNITED STATES V . JINGLES                   11

constructive amendment was a structural error requiring
automatic reversal.

    Comparing the direct appeal with Jingles’s habeas
petition, we hold that the issues presented are essentially the
same. While Jingles labeled his original argument as a
variance claim, the substance of that argument was that the
indictment was constructively amended. Because Jingles
presented his claim on direct appeal, the issue is not barred
here by a procedural default. However, the fact that Jingles
already litigated this issue requires us to determine whether
he is barred from relitigating it under the law of the case
doctrine.

                              III.

    “Under the ‘law of the case’ doctrine, a court is ordinarily
precluded from reexamining an issue previously decided by
the same court, or a higher court, in the same case.”
Richardson v. United States, 841 F.2d 993, 996 (9th Cir.
1988). “For the doctrine to apply, the issue in question must
have been ‘decided explicitly or by necessary implication in
[the] previous disposition.’” United States v. Lummi Indian
Tribe, 235 F.3d 443, 452 (9th Cir. 2000) (alteration in
original) (quoting Liberty Mutual Ins. Co. v. EEOC, 691 F.2d
438, 441 (9th Cir. 1982)). A collateral attack is the “same
case” as the direct appeal proceedings for purposes of the law
of the case doctrine. See Odom, 455 F.2d at 160. Therefore,
we must determine whether the panel that rejected Jingles’s
direct appeal actually decided this issue, either explicitly or
by necessary implication.

    Unfortunately, the previous panel’s unpublished
disposition did not expressly engage Stirone, the case upon
12               UNITED STATES V . JINGLES

which Jingles primarily relied. See Jingles II, 64 F. App’x at
83. Our previous panel rejected this issue in one paragraph:

        Jingles’ argument that there was a material
        variance between the jury’s verdict and counts
        twenty-one and twenty-two of the indictment
        also fails. “[W]here the variance is not of a
        character which could have misled the
        defendant at trial, and there is no danger of
        double jeopardy . . . , the variance between
        indictment and proof is immaterial.” United
        States v. Tsinhnahijinnie, 112 F.3d 988, 991
        (9th Cir.1997) (citations and internal
        quotation marks omitted). The indictment
        provided sufficient notice that Jingles faced a
        cocaine base charge and the proof at trial did
        not vary from this charge. Additionally, the
        fact that the government was not required to
        prove possession of a specific substance
        further undermines Jingles’ argument. See
        United States v. Sua, 307 F.3d 1150, 1155
        (9th Cir.2002).

Id. (alterations in original). In other words, the panel
concluded that the variance between the indictment and the
proof did not affect Jingles’s substantial rights under the Fifth
Amendment. So the issue is whether the previous panel’s
ruling on a variance precludes our review of Jingles’s
constructive amendment claim. See Lummi Indian Tribe,
235 F.3d at 452 (holding that the law of the case doctrine will
apply only if the decision resolved that issue by necessary
implication).
                 UNITED STATES V . JINGLES                  13

    It is difficult to discern a difference between what
Tsinhnahijinnie termed a “fatal variance” and what Stirone
termed a “constructive amendment.” Cf. United States v.
Adamson, 291 F.3d 606, 615 (9th Cir. 2002) (“The line
between a constructive amendment and a variance is at times
difficult to draw”). A review of the history of the
amendment/variance dichotomy reveals the reason for our
perplexity. The problem is that, according to our definitions
of the two terms, “variance” and “amendment” can, and often
do, mean the same thing.

   We first explained the difference between an
“amendment” and a “variance” in United States v. Von Stoll,
726 F.2d 584 (9th Cir. 1984). We said:

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

Id. at 586 (quoting United States v. Cusmano, 659 F.2d 714,
718 (6th Cir. 1981)). We borrowed this language from the
Sixth Circuit, which, in turn, took it from a decision by the
D.C. Circuit, Gaither v. United States, 413 F.2d 1061, 1071
(D.C. Cir. 1969).

    In Gaither, the court reviewed the historical background
of the two doctrines. According to Gaither, these doctrines
had their genesis in the different purposes served by the Fifth
14               UNITED STATES V . JINGLES

Amendment’s indictment requirement. Requiring indictment
by grand jury protects individuals by: (1) requiring the
prosecutor to establish probable cause for prosecution to the
satisfaction of a group of unbiased men and women, (2)
enabling the accused to prepare a defense by giving notice of
the precise conduct alleged, and (3) protecting against another
prosecution for the same offense. Id. at 1066. As explained in
Gaither,

       An amendment is thought to be bad because it
       deprives the defendant of his right to be tried
       upon the charge in the indictment as found by
       the grand jury and hence subjected to its
       popular scrutiny. A variance is thought to be
       bad because it may deprive the defendant of
       notice of the details of the charge against him
       and protection against reprosecution.

Id. at 1071–72 (internal footnotes omitted). The court
explained that, prior to Stirone, the leading Supreme Court
case of Ex parte Bain required automatic reversal if the
indictment was amended. Gaither, 413 F.2d at 1072.
Prosecutors avoided the automatic reversal rule by simply
proving the facts which the amended indictment would have
charged without changing the indictment’s terms. Id. “Thus
instead of an amendment, there is a variance. And the
accepted rule is that a variance does not call for dismissal of
the indictment except upon a showing of prejudice.” Id.
However,

          The Stirone case limited the use of this
       device. In that case, there was no actual
       amendment of the indictment—rather there
       was a variation in proof from the grand jury’s
                 UNITED STATES V . JINGLES                   15

       charge. However, the Supreme Court found
       the variance substantial enough to amount to
       a constructive amendment of the indictment,
       and relied on Bain in ordering the indictment
       dismissed. The reason given was not that the
       variance deprived the defendant of notice or
       protection against double jeopardy, but rather
       that it infringed his “right to have the grand
       jury make the charge on its own judgment.”

Id. (italics added) (quoting Stirone, 361 U.S. at 218–19).

      Thus, Gaither’s description of the difference between an
“amendment” and a “variance” is somewhat misleading. As
Gaither itself recognized, a “constructive amendment” is
simply one kind of “variance”—that is, a variation in proof
from the grand jury’s charge. If the variation in proof results
in an infringement of the right to have the grand jury make
the charge on its own indictment, we call it a constructive
amendment. Regardless of the name ascribed to it, courts
faced with a variation in proof from the grand jury’s charge
must consider every way in which that variation might burden
a defendant’s substantial rights. Indeed, when we found a
“fatal variance” in Tsinhnahijinnie, we referred to all three
rationales for the indictment requirement: “The problem [with
a variance in proof] would be that the defendant was not
indicted for the crime proved, had no fair notice, and would
lack double jeopardy protection against an indictment for the
. . . crime if he won acquittal.” 112 F.3d at 992.

   As mentioned above, the historical difference between a
constructive amendment and a variance has been that the
former requires automatic reversal while the latter does not.
See Adamson, 291 F.3d at 615 (“[The line between a
16               UNITED STATES V . JINGLES

constructive amendment and a variance] is significant
because, whereas a constructive amendment always requires
reversal, a variance requires reversal only if it prejudices a
defendant’s substantial rights” (internal quotation marks
omitted)). Under Bain and Stirone, a constructive amendment
requires automatic reversal. See Gaither, 413 F.2d at 1072. A
variance, on the other hand, is harmless if the indictment gave
the defendant adequate notice of the charges and there was no
risk of double jeopardy if the defendant had been acquitted.
See id.; see also Berger v. United States, 295 U.S. 78, 82
(1935).

    In terms of reviewing for harmless error, requiring
automatic reversal for a constructive amendment makes
sense. As already explained, a constructive amendment is
simply a variance that has resulted in the denial of a
defendant’s right to the popular judgment of a grand jury. If,
in a particular case, a court concluded that a variance
amounted to a constructive amendment, it would already have
determined that the variance resulted in denial of a substantial
right and, therefore, that the error was not harmless.
However, the automatic reversal rule was not adopted using
harmless error analysis. Rather, the Supreme Court originally
adopted that rule on the grounds that a trial court would lack
jurisdiction to try a defendant for a charge not included in the
indictment. See Ex parte Bain, 121 U.S. 1, 13 (1887). The
Supreme Court overruled this jurisdictional justification for
the rule in United States v. Cotton, 535 U.S. 625, 630–31
(2002).

    In Cotton, the Supreme Court held, on plain error review,
that a constructive amendment did not require automatic
reversal. Id. The Court affirmed Cotton’s conviction even
though it found a constructive amendment, “because even
                 UNITED STATES V . JINGLES                    17

assuming respondents’ substantial rights were affected, the
error did not seriously affect the fairness, integrity, or public
reputation of judicial proceedings.” Id. at 632–33. Like the
petitioner in Cotton, Jingles did not preserve the issue in the
district court, so like the claim in Cotton, Jingles’s claim was
subject to plain error review. Id.

    The upshot for Jingles’s case is that the difference
between a claim of constructive amendment and a claim of
fatal variance, if any, is extremely slight. It is difficult to
imagine a fatal variance (i.e. a variance that affects either the
defendant’s right to fair notice of the charges or the right to
protection against double jeopardy) that would not also
constitute a constructive amendment (i.e., a variance that
affects the defendant’s right to the scrutiny of a grand jury).
Conversely, it would be difficult to conceive of a scenario
where a variance that does not affect the defendant’s
substantial rights of notice and protection against double
jeopardy would nevertheless deny the defendant his right to
the judgment of a grand jury. In other words, a court’s
conclusion that an indictment provided adequate notice and
protection against double jeopardy necessarily implies that
the variance did not deny the defendant his right to the
popular scrutiny of the grand jury.

    In this case, the previous panel concluded that the
variance was harmless because the indictment on counts
twenty-one and twenty-two gave Jingles adequate notice that
he was being charged with possession of cocaine base. That
holding would be inconsistent with an argument that the
indictment denied Jingles the benefit of the popular scrutiny
of a grand jury with respect to those charges. Therefore, the
prior panel’s decision resolved Jingles’s constructive
amendment claim by necessary implication. See United States
18                  UNITED STATES V . JINGLES

v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005) (“An
argument is rejected by necessary implication when the
holding stated or result reached is inconsistent with the
argument”). Our prior decision on Jingles’s constructive
amendment claim is the law of the case. Jingles had his bite
at the apple, and we will not give him a second bite unless
one of the exceptions to the law of the case doctrine applies.

    We may decline to apply the decision of a previous panel
of our court as the law of the case if “‘(1) the decision is
clearly erroneous and its enforcement would work a manifest
injustice, (2) intervening controlling authority makes
reconsideration appropriate, or (3) substantially different
evidence was adduced at a subsequent trial.’” Gonzalez v.
Arizona, — F.3d —, 2012 WL 1293149, at *2 n.4 (9th Cir.
Apr. 17, 2012) (en banc) (quoting Jeffries v. Wood, 114 F.3d
1484, 1489 (9th Cir. 1997) (en banc)).3 Jingles does not argue
that an intervening change in law makes reconsideration of
the previous decision appropriate, and the remand after
Jingles’s direct appeal did not involve any new evidence. He
argues that the previous panel’s decision is clearly erroneous
and that its enforcement would work a manifest injustice.




 3
   Some decisions of this circuit have listed the exceptions to the law of
the case doctrine slightly differently. For example, Lummi Indian Tribe
separates the question of whether the decision was clearly erroneous from
the question of whether it would work a manifest injustice, and it also
adds a “changed circumstances” exception. 235 F.3d at 452–53. Our en
banc court, however, has consistently identified only three exceptions, and
has treated the “manifest injustice” and “clearly erroneous” inquiries as
two parts of the same exception. See Gonzalez, — F.3d — , 2012 W L
1293149, at *2 n.4; Jeffries, 114 F.3d at 1492. W e, therefore, adopt the
formulation expressed in Gonzalez and Jeffries.
                     UNITED STATES V . JINGLES                             19

    While one might doubt the correctness of our prior
panel’s decision, we need not decide whether it is clearly
erroneous because, even if it were, its enforcement does not
work any manifest injustice. If our prior panel had found
either a fatal variance or a reversible constructive amendment
on counts twenty-one and twenty-two, it would have vacated
Jingles’s convictions for those counts. But Jingles would still
have been subject to a life sentence on count two,4 and he
would still have had to serve that life sentence concurrently
with a sentence of imprisonment for a determinate term of
520 years on the other counts. Thus, granting relief on counts
twenty-one and twenty-two would not have reduced the time
Jingles must spend in prison. Even if we were to assume that
the prior panel’s decision is erroneous, and that Jingles was
wrongfully convicted, vacating the convictions before us
would not make Jingles any better off.

    We recognize that, in some cases, a conviction may have
“potential adverse collateral consequences” even if it does not
add any time to the defendant’s sentence. See Ball v. United
States, 470 U.S. 856, 865 (1985). For example, in some cases,
“the presence of two convictions on the record may delay the
defendant’s eligibility for parole or result in an increased
sentence under a recidivist statute for a future offense.” Id.
Parole, however, has not been a feature of criminal justice in
the federal system for some time. See Comprehensive Crime
Control Act of 1984, Pub. L. 98-473, 98 Stat. 1976 (replacing


 4
   In his supplemental opening brief, Jingles contends that his conviction
on count two must also be set aside because it is supported by counts
twenty-one and twenty-two as predicate offenses. Jingles did not present
this claim to the district court, and we did not include the issue in Jingles’s
certificate of appealability. Accordingly, we will not consider whether
Jingles’s conviction on count two should be vacated.
20               UNITED STATES V . JINGLES

parole system with system of determinate sentence followed
by supervised release for crimes committed after November
1, 1987). No recidivist statute can impose a heavier sentence
for a future offense than the sentences Jingles is already
serving. If there are any collateral consequences attending
Jingles’s convictions on counts twenty-one and twenty-two,
they are not significant enough to constitute a manifest
injustice. Jingles argues that our prior panel’s decision works
injustice because it involves the extinguishment of a
constitutional right. But he does not identify any real
consequences that result from the loss of that right.

    Because our previous panel’s rejection of Jingles’s
constructive amendment claim does not work a manifest
injustice, we respect that decision as the law of the case.
Jingles’s motion under 28 U.S.C. § 2255 was properly
denied.

     AFFIRMED.
