                 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-
JOHN WESLEY JINGLES,                        FCD-CMK
             Defendant-Appellant.         2:98-CR-00431-
                                              FCD-CM

                                            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

    Before: J. Clifford Wallace, Dorothy W. Nelson, and
                Carlos T. Bea, Circuit Judges

                Opinion by Judge Wallace




                           6507
6510               UNITED STATES v. JINGLES


                          COUNSEL

Krista Hart, Sacramento, California, for the plaintiff-
appellant.

Benjamin B. Wagner, United States Attorney; Jared C. Dolan
(argued), Assistant United States Attorney, Sacramento, Cali-
fornia, for the defendant-appellee.


                          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 multi-
plicitous counts that did not affect the overall sentence). Act-
ing pro se, Jingles subsequently filed a motion to correct or
                   UNITED STATES v. JINGLES                   6511
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 pursu-
ant 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 viola-
tion 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 (Jin-
gles I), No. 2:98-cr-431-FCD (E.D. Cal. Sept. 3, 1999). Count
6512               UNITED STATES v. JINGLES
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 interrog-
atories:

    AS TO COUNT TWENTY-ONE OF THE
    INDICTMENT:

    ____________________GUILTY/NOT GUILTY of
    a violation of Title 21 U.S.C. § 841(a)(1) — Posses-
    sion 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 POW-
                     DER
                                        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 reason-
         able doubt that the defendant possessed with
                       UNITED STATES v. JINGLES                       6513
          intent to distribute 50 grams or more of a mix-
          ture or substance containing a detectable amount
          of cocaine base, do you find beyond a reason-
          able 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 iden-
tical 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 pos-
sessed cocaine powder and that it did find he possessed
cocaine base. The jury answered “yes” to the second interrog-
atory 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
of Jingles’s alleged crime,2 such a violation carried a mini-
   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).
   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 amend-
ments affected the provisions relevant to Jingles.
6514                UNITED STATES v. JINGLES
mum 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 previ-
ous 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 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 commit-
ted 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 dis-
tribute in excess of 50 grams of cocaine base, even though the
indictment charged only that he possessed with intent to dis-
                    UNITED STATES v. JINGLES                 6515
tribute 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, appel-
    lant received a sentence for a crime with which he
    was not charged, and was not convicted.

       The Fifth Amendment to the United States Consti-
    tution 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 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 sen-
    tenced for are two different crimes and the district
    court exceeded its jurisdiction in sentencing appel-
    lant for a crime with which he was never charged,
    thus depriving him of the constitutional right to “an-
    swer” only for those crimes presented to the grand
    jury.

Id. at 27.
6516               UNITED STATES v. JINGLES
   [1] 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 indict-
ment requirement under United States v. Stirone, 361 U.S.
212 (1960). There are few differences between Jingles’s pre-
vious 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 construc-
tive amendment was a structural error requiring automatic
reversal.

   [2] Comparing the direct appeal with Jingles’s habeas peti-
tion, we hold that the issues presented are essentially the
same. While Jingles labeled his original argument as a vari-
ance claim, the substance of that argument was that the indict-
ment 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 liti-
gated this issue requires us to determine whether he is barred
from relitigating it under the law of the case doctrine.

                              III.

   [3] “Under the ‘law of the case’ doctrine, a court is ordi-
narily 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 implica-
tion 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
                    UNITED STATES v. JINGLES                  6517
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.

   [4] Unfortunately, the previous panel’s unpublished dispo-
sition did not expressly engage Stirone, the case upon 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. Addition-
    ally, 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 con-
cluded 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 rul-
ing on a variance precludes our review of Jingles’s construc-
tive 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).

  It is difficult to discern a difference between what Tsinh-
nahijinnie termed a “fatal variance” and what Stirone termed
6518               UNITED STATES v. JINGLES
a “constructive amendment.” Cf. United States v. Adamson,
291 F.3d 606, 615 (9th Cir. 2002) (“The line between a con-
structive 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, “vari-
ance” 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
Amendment’s indictment requirement. Requiring indictment
by grand jury protects individuals by: (1) requiring the prose-
cutor to establish probable cause for prosecution to the satis-
faction of a group of unbiased men and women, (2) enabling
the accused to prepare a defense by giving notice of the pre-
cise conduct alleged, and (3) protecting against another prose-
                   UNITED STATES v. JINGLES                  6519
cution 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 indict-
ment 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 charge. However, the Supreme
    Court found the variance substantial enough to
    amount to a constructive amendment of the indict-
    ment, and relied on Bain in ordering the indictment
    dismissed. The reason given was not that the vari-
    ance 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).

  [5] Thus, Gaither’s description of the difference between
an “amendment” and a “variance” is somewhat misleading.
6520               UNITED STATES v. JINGLES
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 amend-
ment. Regardless of the name ascribed to it, courts faced with
a variation in proof from the grand jury’s charge must con-
sider every way in which that variation might burden a defen-
dant’s substantial rights. Indeed, when we found a “fatal
variance” in Tsinhnahijinnie, we referred to all three ratio-
nales 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.

   [6] 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 con-
structive 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 auto-
matic reversal. See Gaither, 413 F.2d at 1072. A variance, on
the other hand, is harmless if the indictment gave the defen-
dant 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 auto-
matic reversal for a constructive amendment makes sense. As
already explained, a constructive amendment is simply a vari-
ance 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 vari-
                   UNITED STATES v. JINGLES                 6521
ance 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 over-
ruled 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
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 is
subject to plain error review. Id.

   [7] 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 con-
stitute a constructive amendment (i.e., a variance that affects
the defendant’s right to the scrutiny of a grand jury). Con-
versely, 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.
6522                   UNITED STATES v. JINGLES
   [8] In this case, the previous panel concluded that the vari-
ance 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 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 deci-
sion 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 recon-
sideration 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
  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 WL
1293149, at *2 n.4; Jeffries, 114 F.3d at 1492. We, therefore, adopt the
formulation expressed in Gonzalez and Jeffries.
                        UNITED STATES v. JINGLES                         6523
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.

   [9] 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 sen-
tence 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 Jin-
gles’s conviction on count two should be vacated.
6524               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 serv-
ing. If there are any collateral consequences attending Jin-
gles’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.

   [10] 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. Jin-
gles’s motion under 28 U.S.C. § 2255 was properly denied.

  AFFIRMED.
