           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                               United States Court of Appeals

                                        No. 16-31148
                                                                                        Fifth Circuit

                                                                                      FILED
                                                                             September 13, 2017

SEALED APPELLEE                                                                  Lyle W. Cayce
                                                                                      Clerk
                                                    Plaintiff–Appellee
v.

SEALED JUVENILE,

                                                    Defendant–Appellant




                     Appeal from the United States District Court
                        for the Western District of Louisiana
                               USDC No. 2:15-CR-126-1


Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ, District
Judge.*

XAVIER RODRIGUEZ, District Judge:**
      The mandate is recalled and this opinion is substituted for our opinion
of August 18, 2017. After a bench trial, Defendant–Appellant, a juvenile, was
adjudicated delinquent based on attempted aggravated sexual abuse that
occurred on a military installation. The district court, when announcing its


      *   District Judge of the Western District of Texas, sitting by designation.
      ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
                                 No. 16-31148

verdict, stated that Appellant “had an intent to commit a sexual act or
actually was committing a sexual act, just not the one that everybody thought
he was going to commit.” Because of this comment, it is unclear whether
Appellant was adjudicated delinquent on the basis of an offense charged in
the information. Accordingly, the judgment of the district court is VACATED
and this action is REMANDED for further proceedings not inconsistent with
this opinion, including a new trial if deemed appropriate by the district court.
                               BACKGROUND
   A. Factual Background
      In November 2014, Appellant, approximately fourteen or fifteen years
old at the time, moved into the home of his maternal aunt in Georgia. In
January 2015, the family, including Appellant, moved to a military
installation in Louisiana. The family, who lived in a one-story home on the
military installation, consisted of Appellant, his aunt, his aunt’s husband,
and Appellant’s three female cousins, ages twelve, nine, and seven.
Appellant’s aunt had a number of rules governing the household, including
that all doors inside of the house remain open at all times.
      The incident that forms the basis of Appellant’s underlying delinquency
adjudication occurred on February 23, 2015. An ice storm caused school to be
cancelled that day. Shortly after lunch, the aunt’s husband left home for
work. The remaining members of the family—Appellant, his aunt, and his
three cousins—began watching a movie.
      Sometime after the movie finished and the children went to other
rooms, Appellant’s aunt got up to tell the children that she was leaving to run
an errand. As she walked down the hallway, she noticed that the playroom
door was mostly closed, in violation of her household rule. She opened the

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door to the playroom to find her seven-year-old daughter (Appellant’s cousin)
with her pants and underwear pulled down and pinned beneath her knees.
Both of her hands and both of her knees were on the ground. Appellant was
positioned behind her.
      The parties presented conflicting accounts of how the girl’s pants and
underwear came to be pulled down, along with the precise position of
Appellant in relation to her. According to the girl, she went into the playroom
first. Appellant came in after her and pulled down her pants and underwear.
She testified that she was sitting down on her hands and knees facing
downward. She testified that Appellant was behind her, that he touched her
on “the outside” of her bottom with his hand, and that he was on top of her
with all of his body touching hers. She said this contact made her
uncomfortable.
      Appellant’s aunt testified that she saw Appellant tilted over the girl,
leaning over her with his hands on the ground close to hers. The aunt said
that Appellant’s abdomen was touching the girl’s back. She testified that
from behind, she could see “a little bit of [Appellant’s] skin and his butt
crack,” and that it looked like “[Appellant] was about to have sex with [her]
daughter.”
      Appellant testified to a different version of events. He testified that
when the movie ended, he went to the playroom to watch TV and the girl was
not there at that time. After he went into the playroom, the girl entered,
“laughing and being silly.” Appellant testified that she pulled down her own
pants and underwear, and that he was trying to get her to pull them back up
before his aunt noticed. While Appellant was trying to get the girl to pull her
pants up, his aunt entered. At the time, Appellant was wearing sweatpants,

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which he acknowledges may have slipped, but he noted that his underwear
did not slip at all.
      Upon opening the door to the playroom and seeing Appellant and the
girl, the aunt cursed at and began hitting Appellant, who attempted to
explain that “It’s not what you think.” Appellant offered to leave the house if
his aunt did not call the police, but she said “[y]ou got to go to jail,” and called
the police, who arrested Appellant.
   B. Procedural Background
      On June 11, 2015, the United States Government filed a Certification
to Proceed Under the Juvenile Justice and Delinquency Prevention Act, 18
U.S.C. §§ 5031 et. seq., pointing out a strong federal interest in this case
because the February 2015 incident occurred on the Fort Polk military
installation. Consistent with the procedures of 18 U.S.C. § 5032, Appellant
was charged in a one-count juvenile information with an act of juvenile
delinquency. In particular, the information alleged that Appellant attempted
to engage in a sexual act, as defined in 18 U.S.C. § 2246(2)(C), with a person
under twelve years of age, which, if done by an adult, would constitute
aggravated sexual abuse in violation of 18 U.S.C. § 2241(c).
      The district court held a bench trial on January 14, 2016, and found
against Appellant, adjudicating him delinquent for the crime of aggravated
sexual abuse. Neither party requested specific findings of fact. But in the
course of announcing her findings, the district judge stated:
      I think the evidence is sufficient to determine [Appellant] a
      delinquent based on the events of February 23rd, 2015, in which
      he, in my opinion, had an intent to commit a sexual act or
      actually was committing a sexual act, just not the one that
      everybody thought he was going to commit. So based on that, I


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       find him to be a delinquent and order to remand him into
       custody.

R. at 120 (emphasis added).
       In October 2016, the district court sentenced Appellant to supervised
probation to last until his twenty-first birthday. 1 At the Government’s
request, the district court ordered that Appellant register as a sex offender as
a special condition of his probation. Defense counsel objected, arguing that a
lifelong requirement for Appellant to register as a sex offender violates the
Eighth Amendment to the U.S. Constitution, particularly in light of the
Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460(2012). 2
       Appellant filed a timely notice of appeal on November 4, 2016.
                                     DISCUSSION
       Appellant argues that the district court adjudicated him delinquent on
the basis of conduct that was not charged in the information, which
constituted a constructive amendment and therefore violated his Due Process
rights. Blue Br. at 16. His argument starts with the information, 3 which
alleges that



       1 Such sentences cannot extend beyond a delinquent’s twenty-first birthday. 18
U.S.C. § 5037(b)–(d).

       2Because the Court vacates and remands the district court’s judgment on other
grounds, this aspect of the appeal is now moot.

       3 In the equivalent, non-juvenile criminal context, a constructive amendment is
based on discrepancies between the indictment and a finding of guilt. See United States v.
Daniels, 252 F.3d 411, 414 (5th Cir. 2001) (“[A] constructive amendment occurs if the jury is
permitted to convict on an alternative basis permitted by the statute but not charged in the
indictment.” (internal citation and quotations omitted)). Due to the juvenile context of this
case, Appellant’s argument is properly focused on the alleged discrepancy between the
wrongful conduct described in the information and the district court’s adjudication of
delinquency. See 18 U.S.C. § 5032 (requiring that district court delinquency adjudications
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       [Appellant], a male juvenile who at the time had not reached his
       eighteenth birthday, committed an act of juvenile delinquency, in
       violation of Title 18, United States Code, Section 5032, to wit: the
       defendant did knowingly engage in and attempt to engage in a
       sexual act, as that term is defined in Title 18, United States Code
       2246(2)(C), with a person who had not attained the age of 12
       years, which would have been a crime in violation of Title 18,
       United States Code, Section 2241(c), if he had been an adult.

R. at 139–40. Section 2246(2)(C) defines “sexual act” as “the penetration,
however slight, of the anal or genital opening of another by a hand or finger
or by any object, with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.”
       Appellant’s constructive amendment argument turns on the district
court’s statement when it announced its verdict: “[Appellant], in my opinion,
had an intent to commit a sexual act or actually was committing a sexual act,
just not the one that everybody thought he was going to commit.” R. at 120.
       There is no dispute that Appellant did not file a timely objection to this
statement, which he now asserts is a constructive amendment.
 I.    Jurisdiction
       This Court has jurisdiction pursuant to 28 U.S.C. § 1291 as an appeal
from a final decision of a district court. 4
II.    Standard of Review
       “[A] constructive amendment occurs if the jury is permitted to convict
on an alternative basis permitted by the statute but not charged in the

proceed by information); see also United States v. Juvenile Male, 554 F.3d 456, 464 (4th Cir.
2009) (“Notably, a juvenile delinquency information functions as an indictment.”).

       4 The Government relies on our decision in United States v. Carmichael, 343 F.3d
756 (5th Cir. 2003) to argue that 18 U.S.C. § 3742 does not confer jurisdiction over this
appeal. Because we conclude that we have jurisdiction under 28 U.S.C. § 1291, we need not
address this issue.
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                                  No. 16-31148

indictment.” Daniels, 252 F.3d at 414 (internal citations omitted). Stated
differently, “a constructive amendment of an indictment occurs when an
essential element of the offense is effectively modified during trial.” United
States v. Young, 730 F.2d 221, 224 (5th Cir. 1984). Importantly, the Fifth
Circuit distinguishes constructive amendments from mere variances, which
are less drastic mismatches between the evidence and the charge of the
indictment. Id. at 223; see also United States v. Delgado, 401 F.3d 290, 295
(5th Cir. 2005) (“A variance arises when the proof at trial depicts a scenario
that differs materially from the scenario charged in the indictment but does
not modify an essential element of the charged offense.” (internal citations
omitted)).
      This distinction is important because a constructive amendment
implicates a different standard of review than a variance. Where a
constructive amendment is properly objected to before the district court, it is
reversible per se. United States v. Jara-Favela, 686 F.3d 289, 299 (5th Cir.
2012). On the other hand, where a defendant does not object to a constructive
amendment at the district court, the Fifth Circuit reviews for plain error.
Daniels, 252 F.3d at 414. As for a mere variance, the Fifth Circuit reviews for
harmless error. United States v. Ongaga, 820 F.3d 152, 164 (5th Cir. 2016),
cert. denied, 137 S. Ct. 211 (2016).
      Because it is undisputed that Appellant did not object to the alleged
constructive amendment at the district court, any constructive amendment or
variance would be reviewed for plain error or harmless error. In the event
that the district court constructively amended the information, this Court
would review for plain error, meaning error that is plain and that affects
Appellant’s substantial rights; even if these requirements are satisfied, this

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Court has discretion to correct the forfeited error, which it should do only if
the error seriously affects the fairness, integrity or public reputation of
judicial proceedings. United States v. Olano, 507 U.S. 725, 732 (1993). In the
event that the district court committed a mere variance, this Court would
review for harmless error, requiring reversal only if it prejudiced Appellant’s
substantial rights either by surprising him or placing him at risk of double
jeopardy. Young, 730 F.2d at 223; Ongaga, 820 F.3d at 164.
      Appellant argues that this Court should review the alleged constructive
amendment de novo for two reasons. First, Appellant argues that “the
underlying rationale of the contemporaneous objection and plain error rule is
not furthered by applying it when there was a bench trial where the judge sue
[sic] sponte amended the bill of information.” Blue Br. at 16. This argument is
without   merit   because the entire       basis   of Appellant’s constructive
amendment argument—the district court’s statement that Appellant
intended to commit a sexual act, “just not the one that everybody thought he
was going to commit”—could have been greatly clarified by a proper and
timely objection. As will be discussed, the district court’s statement and its
meaning are unclear. Had Appellant properly objected, the district court
could have at least clarified its statement or at most corrected any alleged
error. See United States v. Castillo, 430 F.3d 230, 242 (5th Cir. 2005) (“With
respect to the preservation of error, this court has held that the purpose of a
contemporaneous objection is to enable the district court to correct its error in
a timely manner.”). Second, Appellant argues for de novo review because
“[a]ny objection by defense counsel to the District Court Judge’s verdict would
have been futile because at the time of the error, the District Court Judge’s
belief in the verdict was well formed.” Blue Br. at 17. This argument too is

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meritless. Because the district court’s statement was unclear, it is difficult to
determine exactly what the district court thought of its verdict. And again,
the very purpose of this objection would have been to give the district court a
timely opportunity to correct any errors underlying its verdict. In any event,
Appellant cites no case applying de novo review to an unpreserved
constructive amendment or variance objection, and the case law is to the
contrary. See Jara-Favela, 686 F.3d at 299 (reviewing a preserved
constructive amendment claim de novo).
       For these reasons, a constructive amendment would require plain error
review and a mere variance would require harmless error review.
III.   Analysis
       Because of the district court’s comment, the record does not reflect
whether there was sufficient evidence to adjudicate Appellant delinquent.
The information alleged that Appellant attempted to commit a sexual act, as
defined in § 2246(2)(C) as “the penetration, however slight, of the anal or
genital opening of another by a hand or finger or by any object, with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of
any person.” See R. at 139–40; 18 U.S.C. § 2246(2)(C). By adjudicating
Appellant delinquent because he “had an intent to commit a sexual act or
actually was committing a sexual act, just not the [sexual act] that everybody
thought he was going to commit,” the district court raised doubts as to
whether the adjudication was based on an attempt to commit a sexual act as
defined in § 2246(2)(C) and as charged in the information.
       By using the precise phrase defined by statute and charged in the
information, the district court could likely have adjudicated Appellant
delinquent on the basis of a sexual act with an entirely different definition.

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                                 No. 16-31148

See 18 U.S.C. § 2246(2)(A), (B), (D) (defining “sexual act” in ways other than
penetration). If this were the case, Appellant’s defense at trial would have
been quite different. As the Government points out, the ultimate defense
would still have been advancing an innocent explanation for the situation
observed by Appellant’s aunt. But the means of proving this defense would
have changed depending on the precise sexual act that Appellant was
accused of committing. If Appellant were charged with attempting to commit
oral sex or a simple touching, the precise factual narrative at trial would
have been much different than the narrative involving alleged penetration—
the questions asked of the victim would have been different, the questions
asked of Appellant’s aunt (an eye-witness to the attempt) would have been
different, and perhaps even Appellant’s decision not to testify would have
been different.
      Supporting the Government’s position, § 2246(2)(C) defines penetration
in a way that contemplates a variety of sexual acts. Thus, § 2246(2)(C) could
logically encompass both the sexual act upon which the district court based
its adjudication of delinquency and the sexual act that formed the basis of the
information, even though those ended up being two slightly different forms of
penetration. Despite this possibility, the district court’s comment is still too
ambiguous for this Court to discern its exact meaning. It is certainly possible
that the district court adjudicated Appellant delinquent on the basis of a
“sexual act” that fits within the meaning of § 2246(2)(C) and yet is not what
“everybody thought he was going to commit.” Equally possible, though, the
district court may have contemplated a “sexual act” that does not fit within
this definition.



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      Another ambiguity in the district court’s statement is its reference to
the sexual act “everybody thought [Appellant] was going to commit.” The
Government argues that the district court could have meant that the
prosecution and the defense all contemplated the same sexual act, but
someone else (e.g., Appellant’s family) contemplated a different act. The
Government is right—this could have been the district court’s intended
meaning. But again, the district court may have contemplated one sexual act
while everybody—the prosecution, the defense, the information, Appellant’s
family—contemplated a different one as defined in § 2246(2)(C).
      The Government’s arguments do nothing more than highlight the
ambiguity of the district court’s statement. Because the statement is unclear,
this Court cannot determine whether the district court committed error by
adjudicating Appellant delinquent on the basis of insufficient evidence. Nor
can this Court determine whether the district court constructively amended
the information, committed a mere variance, or committed no error at all.
This lack of clarity is so severe that, because the standard of review varies
between constructive amendment and variance, this Court cannot even
precisely determine whether plain error or harmless error review applies.
      The Government also argues that constructive amendment protections
may not apply in federal juvenile delinquency proceedings. As the
Government points out, federal delinquency proceedings are not strictly
criminal in nature—“A successful prosecution under [18 U.S.C. §§ 5031, et.
seq.] results in a civil determination of status rather than a felony or
misdemeanor conviction.” United States v. Sealed Appellant, 123 F.3d 232,
233 (5th Cir. 1997). Extending this premise, the Government argues that “the
prohibition against constructive amendments is derived from the Fifth

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Amendment’s guarantee of an indictment for all federal felony offenses, and
the Sixth Amendment’s guarantee of fair notice regarding any criminal
charges. See [Russell v. United States, 369 U.S. 749, 763–64 (1962); Stirone v.
United States, 361 U.S. 212, 215–16 (1960)].” Red Br. at 25. 5 As a result, the
Government argues, Appellant was only entitled to the Fifth Amendment’s
Due Process protection of fundamental fairness in the context of juvenile
dispositions, and not the Fifth and Sixth Amendments’ greater protections
concerning constructive amendments or variances. See Red Br. at 25–27
(quoting United States v. Edward J., 224 F.3d 1216, 1221 (10th Cir. 2000) for
the proposition that “the Due Process Clause has a role to play, in juvenile
trial proceedings, and the standard we use to measure the extent of that role
is one of fundamental fairness.” (internal quotations omitted)).
       At best, the answer to this question is unsettled. The Supreme Court
has admonished that “[l]ittle, indeed, is to be gained by any attempt
simplistically to call the juvenile court proceeding either ‘civil’ or ‘criminal.’
The Court carefully has avoided this wooden approach.” McKeiver v.
Pennsylvania, 403 U.S. 528, 545 (1971). Beyond recognizing that there is no
Sixth Amendment right to a jury trial in federal delinquency proceedings, the
Supreme Court and Fifth Circuit have seldom addressed the precise
constitutional protections to which a juvenile is entitled or the precise scope
of these protections. See id.; United States v. Cuomo, 525 F.2d 1285, 1292
(5th Cir. 1976) (holding, consistent with all other circuit courts to address the
question, that there is no Sixth Amendment right to a jury trial in
delinquency proceedings); see also Fare v. Michael C., 442 U.S. 707, 717 n.4


       5See also United States v. Reyes, 102 F.3d 1361, 1364 (5th Cir. 1996) (characterizing
a constructive amendment as a violation of a criminal defendant’s Fifth Amendment
guarantee to be tried only on charges alleged in a grand jury indictment).
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(1979) (“[T]his Court has not yet held that Miranda applies with full force to
exclude evidence obtained in violation of its proscriptions from consideration
in juvenile proceedings, which for certain purposes have been distinguished
from formal criminal prosecutions.”).
      Regardless, Appellant is of course entitled to due process, which in the
context of juvenile proceedings requires, at the very least, fundamental
fairness. McKeiver, 403 U.S. at 543. Once again, without knowing precisely
what “sexual act” formed the basis the district court’s adjudication, it is
impossible to assess the fairness of the proceedings below. On the one hand,
for the reasons articulated by the Government, the district court may have
been referencing the sexual act charged in the indictment. On the other hand,
for the reasons articulated by Appellant, alternative explanations are equally
likely and, if true, would undermine the fundamental fairness of the district
court proceedings.
                               CONCLUSION
      For the foregoing reasons, we VACATE the judgment of the district
court and REMAND for further proceedings not inconsistent with this
opinion, including a new trial if deemed appropriate by the district court.




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