                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                    FILED
                                                             U.S. COURT OF APPEALS
                                 No. 10-10552                  ELEVENTH CIRCUIT
                                                                   APRIL 4, 2011
                             Non-Argument Calendar
                                                                    JOHN LEY
                           ________________________                  CLERK

                   D.C. Docket No. 2:09-cr-00227-SLB-RRA-1

UNITED STATES OF AMERICA,

                                                                   Plaintiff-Appellee,

                                       versus

BRANDON TERRELL FORREST,

                                                               Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                   (April 4, 2011)

Before CARNES, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

      Brandon Forrest appeals his conviction for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Forrest argues that
the district court incorrectly held that the government did not have to prove that he

possessed the specific gun listed in the indictment, but only had to prove that he

possessed a gun, and that the district court improperly ruled that Congress did not

intend for the possession of a particular firearm to be an element of a 18 U.S.C. §

922(g)(1) violation. After careful review, we affirm.

      The applicable standard of review is unclear given Forrest’s argument and the

trial record, because the district court ruled in a manner consistent with Forrest’s

argument on appeal. To the extent that Forrest’s argument is purely a legal one

regarding the indictment or the resulting jury instruction on the indictment, however,

we review de novo whether the district court’s jury instructions created a constructive

amendment to the defendant’s indictment. See United States v. Williams, 527 F.3d

1235, 1246 n.8 (11th Cir. 2008). A constructive amendment occurs where the jury

instructions so modify the essential elements of the offense charged that the potential

bases for conviction fall beyond what the indictment alleged. United States v. Starke,

62 F.3d 1374, 1380 (11th Cir. 1995); United States v. Keller, 916 F.2d 628, 634 (11th

Cir. 1990). We “analyze jury instructions in the context of the evidence presented

and the government’s theory at trial to determine whether a constructive amendment

to the indictment has occurred.” Williams, 527 F.3d at 1247.




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       In addition, we review the legal correctness of a jury instruction de novo, but

defer to the district court on questions of phrasing absent an abuse of discretion.

United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). “Generally, district

courts have broad discretion in formulating jury instructions provided that the charge

as a whole accurately reflects the law and the facts, and we will not reverse a

conviction on the basis of a jury charge unless the issues of law were presented

inaccurately, or the charge improperly guided the jury in such a substantial way as to

violate due process.” Id. (quotation omitted).1

       To establish a violation of 18 U.S.C. § 922(g)(1), the government must prove

three elements: “(1) that the defendant was a convicted felon, (2) that the defendant

was in knowing possession of a firearm, and (3) that the firearm was in or affecting

interstate commerce.” United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir.

2000).

       Here, the district court correctly ruled and instructed the jury that the

government had to prove that Forrest knowingly possessed the firearm specified in

the indictment charging him with a violation of 18 U.S.C. § 922(g)(1). The jury


       1
         To the extent that Forrest argues that the jury’s verdict was not supported by substantial
evidence, Forrest has failed to clearly indicate this argument on appeal. According to our
precedent, “a party seeking to raise a claim or issue on appeal must plainly and prominently so
indicate. Otherwise, the issue -- even if properly preserved at trial -- will be considered
abandoned.” United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

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instructions corresponded to the evidence presented and the government’s theory at

trial. Indeed, both the district court and the government agreed with Forrest that the

government had to prove that Forrest possessed the gun listed in the indictment.

Accordingly, we can find no adverse ruling to review, and affirm.

      AFFIRMED.




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