                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            September 26, 2008
                             No. 08-10711                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                           D. C. Docket Nos.
                 07-00387-CV-TWT-1 & 03-00023 CR-1-T

MIGUEL ANGEL DIAZ-BOYZO,



                                                          Petitioner-Appellant,

                                  versus

UNITED STATES OF AMERICA,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                          (September 26, 2008)

Before BIRCH, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
       Miguel Angel Diaz-Boyzo appeals the district court’s denial of his motion to

vacate his sentence, 28 U.S.C. § 2255. The district court rejected Diaz-Boyzo’s

motion based on a determination that he did not receive ineffective assistance of

counsel. For the reasons that follow, we AFFIRM.

                                    I. BACKGROUND

       A federal grand jury in 2003 indicted Diaz-Boyzo for a number of offenses

relating to the possession and distribution of methamphetamine and cocaine. He

eventually was tried on four of these counts, including distribution of

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(viii)

(Count Five), carrying a firearm during and in relation to this distribution, in

violation of 18 U.S.C. § 924(c)(1) (Count Six), and possession with intent to

distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(viii) (Count Eight).1 The jury convicted him on the first two counts but

acquitted him on the third. The district court sentenced Diaz-Boyzo to 180 months

of imprisonment – 120 months for Count Five and 60 months for Count Six. We

affirmed both convictions. See United States v. Diaz-Boyzo, 432 F.3d 1264 (11th

Cir. 2005).

       On appeal, Diaz-Boyzo asserts that his counsel was ineffective for failing to


       1
         He was also charged with (and acquitted of) conspiracy to possess with intent to
distribute cocaine and methamphetamine, but that count is not at issue in this case.

                                                2
object to the district court’s constructive amendment of his indictment or to raise

that issue on appeal. These allegations stem from the district court’s potentially

confusing jury instructions regarding the distribution, possession, and firearm

charges. The instructions first referred to “Count Five” and then discussed the

elements of the distribution offense. See R15 at 732. The court then proceeded to

discuss the elements of the possession offense (Count Eight). See R15 at 732-33.

In detailing these components, though, the district court never referred to “Count

Eight,” instead stating that 21 U.S.C. § 841(a)(1) criminalized such possession and

that the jury had to find certain facts in order to find the defendant guilty of “that

offense.” R15 at 733. Diaz-Boyzo asserts that the failure to explicitly state that

the possession elements were part of Count Eight, instead of Count Five, led the

jury to believe he could be convicted of Count Five based on proof of either the

distribution elements or the possession elements.

      Diaz-Boyzo alleges that this confusing description of the distribution charge

constructively amended the firearm charge in Count Six. The grand jury

indictment only charged Diaz-Boyzo with carrying a firearm in relation to the

distribution offense. The district court’s jury instructions on Count Six stated that

the firearm should have been used as part of the offense described in “Count Five”

and contained no language limiting the scope to just the distribution charge. See



                                            3
R15 at 734. Based on the court’s earlier language broadening Count Five, Diaz-

Boyzo contends that the jury could have believed it could convict him of carrying a

firearm in relation to either the distribution offense or the possession offense. The

indictment only referenced the former, thus the instruction would amount to a

constructive amendment of the indictment since it broadened that count’s potential

basis for conviction. Diaz-Boyzo’s counsel failed to object to any of these jury

instructions, which Diaz-Boyzo asserts should constitute ineffective assistance of

counsel.

                                 II. DISCUSSION

      “We review de novo a claim of ineffective assistance of counsel, which is a

mixed question of law and fact.” Caderno v. United States, 256 F.3d 1213, 1216-

17 (11th Cir. 2001). To make a successful claim of ineffective assistance of

counsel, a petitioner must show both that his “counsel’s performance was

deficient” and “that the deficient performance prejudiced [his] defense.”

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984). We

apply a strong presumption of adequate assistance, with the burden on the

petitioner to show that an attorney’s performance “fell below an objective standard

of reasonableness.” Id. at 688-690, 104 S.Ct. at 2064-66. In addition, the

petitioner must demonstrate prejudice by proving “that there is a reasonable



                                          4
probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694, 104 S.Ct. at 2068. An attorney

would thus not be ineffective for failing to preserve a nonmeritorious issue because

such a failure would not change the result and thus could not prejudice the client.

See United States v. Winfield, 960 F.2d 970, 974 (11th Cir. 1992). Ineffective-

assistance claims against appellate counsel are evaluated under the same two-part

standard announced in Strickland. See Johnson v. Alabama, 256 F.3d 1156, 1187

(11th Cir. 2001).

      A constructive amendment to an indictment “occurs when the essential

elements of the offense contained in the indictment are altered to broaden the

possible bases for conviction beyond what is contained in the indictment.” United

States v. Keller, 916 F.2d 628, 634 (11th Cir. 1990). “When a defendant is

convicted of charges not included in the indictment, an amendment of the

indictment has occurred.” Id. at 633. A jury instruction that contains such an

amendment “constitutes per se reversible error,” since it “violates a defendant’s

constitutional right to be tried only on charges presented in a grand jury

indictment.” United States v. Weissman, 899 F.2d 1111, 1114 (11th Cir. 1990)

(emphasis added).

      District courts have a great deal of discretion in how they choose to phrase



                                           5
jury instructions, assuming the instructions accurately represent the law. See

United States v. Starke, 62 F.3d 1374, 1380 (11th Cir. 1995). We evaluate

challenges to jury instructions in context, focusing on whether “the entire charge as

a whole . . . is an accurate statement of the issues and the law.” Weissman, 899

F.2d at 1113 (citation omitted). We will not reverse a conviction unless we find

that “the issues of law were presented inaccurately, the charge included crimes not

contained in the indictment, or the charge improperly guided the jury in such a

substantial way as to violate due process.” Id. at 1114 (citation omitted). Even if

an instruction was incorrect, reversal of a conviction is only merited when there is

“a substantial and ineradicable doubt as to whether the jury was properly guided in

its deliberations.” Id. at 1114 n.1.

      In this case, though the district court’s jury instructions may have presented

a source of confusion to the jury, they do not appear to be so problematic as to

constitute improper instructions to which counsel should have been expected to

object. Based on the court’s phrasing, the jury could have thought that the

elements of Count Eight were part of Count Five, thereby affecting their analysis

of Count Six. However, the effect of such an assumption appears to have been

mitigated by a number of factors. The jury convicted Diaz-Boyzo on Count Five

but acquitted him on Count Eight, indicating that it understood there to be a



                                          6
substantive difference between the two counts. Additionally, the jury apparently

had a written copy of the indictment to refer to in its deliberations, thus allowing it

to look at the actual text of Count Five when analyzing Count Six.2 This is

particularly noteworthy since the jurors did not request further elaboration of the

instructions, thus likely showing that they were not confused about the grounds for

conviction. See United States v. Moore, 525 F.3d 1033, 1046 (11th Cir. 2008).

       Based on the actual text of the district court’s instructions, along with these

mitigating factors, there would appear to be no constructive amendment of the

indictment. All of the statements made by the district court represent accurate

discussions of the law. The sole potential problem with the instructions was the

failure to specifically state that the discussion of the possession charge was part of

Count Eight rather than Count Five. The effect of this omission was likely

minimal, particularly in light of the material seen by the jury and its subsequent

behavior. As we have previously noted, “[w]hen the instructions, taken together,

accurately express the law applicable to the case without confusing or prejudicing

the jury, there is no reason for reversal even though isolated clauses may, in fact,

be confusing, technically imperfect, or otherwise subject to criticism.” Weissman,

899 F.2d at 1114 n.1. In this case, any contention that the instructions constituted a


       2
         The court indicated that the jurors would be provided with such a copy and there was no
indication in the briefing that this did not occur. See R15 at 729.

                                               7
constructive amendment of the indictment would thus be meritless. The failure by

Diaz-Boyzo’s counsel to make such an objection thus would not be sufficiently

deficient to constitute ineffective assistance of counsel, especially given our strong

presumption of adequate representation.

                                  III. CONCLUSION

       Since the district court’s instructions, taken as a whole, did not amount to

constructive amendment of the indictment, Diaz-Boyzo’s counsel was not

ineffective for failing to object to the instructions in the district court or raise the

issue on appeal. Accordingly, we affirm the district court’s judgment.

       AFFIRMED.




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