             Case: 11-14302    Date Filed: 08/16/2013   Page: 1 of 18


                                                                        [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        __________________________

                                No. 11-14302
                         __________________________

                  D.C. Docket No. 8:11-cr-00012-JDW-AEP-2

UNITED STATES OF AMERICA,

                                                                 Plaintiff -Appellee,

                                      versus

KENNETH LAMAR MADDEN,
                                                             Defendant-Appellant.
                         __________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       __________________________
                              (August 16, 2013)

Before DUBINA, JORDAN and COX, Circuit Judges.

COX, Circuit Judge:

      The principal issue we address in this appeal is this: By what standard do we

review a district court’s unobjected-to constructive amendment of a defendant’s

indictment? We hold that we apply plain-error review. Having concluded that the

district court constructively amended Count 2 of Kenneth Lamar Madden’s
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superseding indictment and that the amendment satisfies the plain-error standard,

we reverse Madden’s conviction on Count 2 and remand.

                     I. FACTS & PROCEDURAL HISTORY

      In December 2010, Madden was arrested after participating in a scheme to

rob a drug stash house. A federal grand jury returned a superseding indictment

charging him with three counts. Count 1 charged that Madden conspired with

others to possess with the intent to distribute cocaine in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(A)(ii). (R.1-57 at 1.) Count 2 charged:

      [Kenneth Lamar Madden] . . . did knowingly use and carry a firearm
      during and in relation to a crime of violence and did knowingly
      possess a firearm in furtherance of . . . a drug trafficking crime . . . .

(Id. at 2.) Count 3 charged that he possessed with the intent to distribute cocaine in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. (Id.)

      The case proceeded to trial. The jury returned a verdict of guilty on Counts

1 and 2 and on the lesser-included offense of possession of cocaine on Count 3.

(R.1-108.) The district court sentenced Madden to life imprisonment on Count 1, a

consecutive sixty months on Count 2, and ninety days concurrent on Count 3.

(R.1-126.) Madden appeals.

      The district court’s instructions to the jury on Count 2 were somewhat

confusing. Initially, the court correctly described the charge in Count 2 and used


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language that mirrored the superseding indictment. The court said that Count 2

charges “that the defendant knowingly used and carried a firearm during and in

relation to a crime of violence . . . and did knowingly possess a firearm in

furtherance of a drug trafficking offense.” (R.7-151 at 72). A few moments later,

however, the court used different language and charged the jury on Count 2 as

follows:

              The superseding indictment alleges that the defendant
       knowingly carried a firearm during and in relation to a drug
       trafficking offense or possessed a firearm in furtherance of a drug
       trafficking offense. . . .
              . . . It is sufficient if the government proves beyond a
       reasonable doubt that the defendant knowingly violated the law in
       either way.

(Id. at 78–79.)1 After the court instructed the jury, the court asked Madden’s

attorney if she objected to the instructions, and she replied that she did not. (Id. at

91–92.)




       1
           Along with giving an instruction that deviated from Count 2’s language in the
superseding indictment, the district court gave the jury a verdict form with language that differed
from the indictment. The verdict form said: “As to the offense of using, carrying, or possessing a
firearm during and in relation to or in furtherance of a drug trafficking crime . . . .” (R.1-108.)
And in its closing argument, the Government used language different from that used by the
district court when discussing Count 2. The Government said: “Now, Count Two charges the
defendant with carrying or possessing or aiding another in carrying or possessing a firearm in
furtherance of a drug trafficking crime.” (R.7-151 at 26.)
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                              II. ISSUES ON APPEAL

      We address two issues: first, whether the district court’s jury instructions

constructively amended Count 2 of the superseding indictment, and second, if the

court did constructively amend the indictment, whether the error is reversible error.

      Madden also presents four other issues on appeal. He contends that (1) a

fatal variance occurred on the Count 1 charge, (2) the Government presented

insufficient evidence to prove that he conspired to possess with the intent to

distribute as charged in Count 1, (3) he was denied a fair trial, and (4) his life

sentence is cruel and unusual punishment. We have carefully considered these

contentions and find them without merit. As a result, we address only the issues

related to Madden’s contention that the district court constructively amended

Count 2.

                                 III. DISCUSSION

      Madden contends that the district court’s jury instructions constructively

amended Count 2 of the superseding indictment in violation of the Fifth

Amendment. To resolve this issue, we decide (A) whether the district court’s

instructions constructively amended Count 2 of the superseding indictment and (B)

if so, whether the court committed reversible error in doing so.




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                                        A.

      The Fifth Amendment provides that “[n]o person shall be held to answer for

a capital, or otherwise infamous crime, unless on a presentment or indictment of a

Grand Jury.” U.S. Const. amend. V. Under Supreme Court case law interpreting

the Fifth Amendment, “a court cannot permit a defendant to be tried on charges

that are not made in the indictment against him.” Stirone v. United States, 361

U.S. 212, 217, 80 S. Ct. 270, 273 (1960).        Simply put, a defendant can be

convicted only of a crime charged in the indictment. United States v. Dortch, 696

F.3d 1104, 1111 (11th Cir. 2012), cert. denied, 133 S. Ct. 993 (2013).

      The district court may not constructively amend the indictment. Stirone, 361

U.S. at 215–16, 80 S. Ct. at 272. A constructive amendment “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).

      Count 2 of the superseding indictment reads:

      On or about December 16, 2010, in the Middle District of Florida,
      KENNETH LAMAR MADDEN . . . did knowingly use and carry a
      firearm during and in relation to a crime of violence and did
      knowingly possess a firearm in furtherance of . . . a drug trafficking
      crime . . . .




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(R.1-57 (emphasis added).) So, under Count 2 as charged in the superseding

indictment, a jury could convict Madden if the jury found that he (1) knowingly

used and carried a firearm during and in relation to a crime of violence or (2)

knowingly possessed a firearm in furtherance of a drug trafficking crime. 2

However, the court instructed the jury:

       The superseding indictment alleges that the defendant knowingly
       carried a firearm during and in relation to a drug trafficking offense or
       possessed a firearm in furtherance of a drug trafficking offense.

(R. 7-151 at 78 (emphasis added).)

       The district court’s instructions constructively amended Count 2.                    The

instructions allowed a conviction for “carry[ing] a firearm during and in relation to

a drug trafficking offense,” when the indictment only charged Madden with

possessing a firearm “in furtherance of . . . a drug trafficking crime” and using and

carrying a firearm “during and in relation to a crime of violence.” 3




       2
          Even though the superseding indictment charges that Madden “did knowingly use and
carry a firearm during and in relation to a crime of violence and did knowingly possess a firearm
in furtherance of . . . a drug trafficking crime,” (R.1-57 at 2 (emphasis added),) Madden agrees
that the Government only had to prove that Madden violated the law in one of those ways,
(Appellant’s Br. at 21.)
       3
         The Government argues that Madden makes the wrong argument (that the district court
erroneously replaced “crime of violence” with “drug trafficking offense”) on appeal, and for that
reason, we should not consider whether the court erred in adding “during and in relation to.”
(Appellee’s Br. at 23–24.) Regardless of how one looks at it, the court’s instruction still
provided a basis for conviction that was not included in the indictment—carrying a firearm
during and in relation to a drug trafficking offense.
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      Adding “during and in relation to” broadened the possible bases for

conviction beyond what was specified in the superseding indictment.           As the

Government concedes, (Appellee’s Br. at 25–26, 32,) “in furtherance of” is

narrower than “during and in relation to.” See United States v. Timmons, 283 F.3d

1246, 1251–53 (11th Cir. 2002) (explaining the concepts of “in furtherance of” and

“during and in relation to”); United States v. Ceballos-Torres, 218 F.3d 409, 413

(5th Cir. 2000) (“There are situations where a possession would be ‘during and in

relation to’ drug trafficking without ‘furthering or advancing’ that activity.”). This

change broadened the possible bases for conviction beyond what is contained in

the indictment, and as a result, the district court constructively amended the

indictment.

                                         B.

      Because the district court constructively amended the superseding

indictment, we must decide whether the court’s constructive amendment is

reversible error. To answer this question, we need to (1) decide what standard of

review applies and (2) apply that standard to this case.

                                          1.

      Madden neither objected to the district court’s jury instructions nor raised

the constructive-amendment issue before the district court. Ordinarily we review


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issues not raised before the district court for plain error. See Fed. R. Crim. P.

52(b). But Madden contends that a constructive amendment is a constitutional

error that is per se reversible error, and therefore, he does not have to satisfy the

plain-error standard. So, the issue before us is whether we review an unobjected-to

constructive amendment for plain error or whether such an amendment always

requires reversal.

      There are conflicts in our case law on this issue. Compare Dortch, 696 F.3d

at 1112 (applying plain-error review), with United States v. Peel, 837 F.2d 975,

979 (11th Cir. 1988) (concluding that a constructive amendment is a per se

reversible error).   When we have conflicting case law, we follow our oldest

precedent. See United States v. Levy, 379 F.3d 1241, 1245 (11th Cir. 2004)

(“[W]here there is conflicting prior panel precedent, we follow the first in time.”).

      Our oldest prior precedent appears to be United States v. Carroll, 582 F.2d

942 (5th Cir. 1978).4 In Carroll, the district court, while instructing the jury,

deviated from the language of the indictment and included an offense that was not

charged in the indictment. Id. at 943–44. The jury convicted him. Id. at 943. On




      4
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding all Fifth Circuit precedent decided before October 1, 1981.
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appeal, the defendant argued that the court’s incorrect instruction constructively

amended the indictment in violation of the Fifth Amendment. Id.

      The former Fifth Circuit noted that the defendant did not object to the

improper instruction and reviewed the alleged error under a plain-error standard.

Id. at 943–44. The court determined—and the government conceded—that the

improper instruction was erroneous. Id. at 944. But the government argued that

the error did not affect the defendant’s substantial rights because “there was no

fundamental unfairness which would warrant . . . setting the conviction aside.” Id.

The court rejected this argument, concluding that “there are some constitutional

rights so basic to a fair trial that their infraction can never be treated as harmless”

and that “[t]he right of a defendant to be tried under an indictment presented solely

by a grand jury is one such right.” Id. at 944 (quoting Chapman v. California, 386

U.S. 18, 23, 875 S. Ct. 824, 827-28 (1967)) (emphasis added). For that reason, the

court reversed the defendant’s conviction.

      At first glance Carroll looks as if it governs this case. But “our prior

precedent is no longer binding once it has been substantially undermined or

overruled by . . . Supreme Court jurisprudence.” United States v. Gallo, 195 F.3d

1278, 1284 (11th Cir. 1999). And Carroll was decided long before the Supreme

Court’s opinion in United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770 (1993),


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addressing plain-error review. For the reasons that follow, we conclude that Olano

has overruled—or at the very least, substantially undermined—Carroll to the

extent that Carroll always requires reversal when a constructive amendment

occurs.

      Olano “clarif[ied] the standard for ‘plain error’ review,” id. at 731, 113 S.

Ct. at 1776, held that forfeited errors are subject to plain-error review, id. at 731,

113 S. Ct. at 1776, and outlined a test to determine if a district court had committed

plain error, id. at 732–37, 113 S. Ct. at 1776–79. The plain-error test has four

prongs: there must be (1) an error (2) that is plain and (3) that has affected the

defendant’s substantial rights; and if the first three prongs are met, then a court

may exercise its discretion to correct the error if (4) the error “seriously affect[s]

the fairness, integrity or public reputation of judicial proceedings.” Id. at 732, 113

S. Ct. at 1776 (alteration in original) (quoting United States v. Young, 470 U.S. 1,

15, 105 S. Ct. 1038, 1046 (1985)). Importantly, “a court of appeals may correct

the error . . . only if it meets these criteria.” Id. at 732, 113 S. Ct. at 1777 (first

emphasis added).

      We have read Carroll as establishing that a constructive amendment always

requires reversal regardless of whether the defendant objected to the amendment.

See, e.g., Peel, 837 F.2d at 979 (concluding that “[t]here can be no doubt that


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pursuant to Carroll the rule in the Eleventh Circuit is that a jury instruction which

results in the constructive amendment of a grand jury indictment is reversible error

per se” even if a defendant fails to object). In other words, under this reading of

Carroll, if we conclude that the district court constructively amended the

indictment, we must reverse the conviction.

       But to the extent that Carroll holds that an unobjected-to constructive

amendment always requires reversal, Olano has abrogated that holding. Olano

teaches that our authority to correct a forfeited error is always discretionary. 507

U.S. at 732, 113 S. Ct. at 1776 (“Rule 52(b) leaves the decision to correct the

forfeited error within the sound discretion of the court of appeals . . . .”); id. at 735,

113 S. Ct. at 1778 (“Rule 52(b) is permissive, not mandatory.”). Even if we

conclude that the plain-error test is satisfied, we may correct the error, but we are

not required to do so. Id. at 735, 113 S. Ct. at 1778; see also United States v.

Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005) (“We have discretion to correct an

error under the plain error standard . . . .”).

       Thus, Olano’s holding that a court of appeals always has the discretion to

correct a forfeited error clashes with Carroll’s holding that we must always reverse

when there is an unobjected-to constructive amendment. As a result, we conclude

that Carroll has been undermined to the point of abrogation by Olano, and we are


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no longer bound by Carroll. See United States v. Archer, 531 F.3d 1347, 1352

(11th Cir. 2008) (noting that we are bound by the rule of our prior precedent

“unless and until it is overruled or undermined to the point of abrogation by the

Supreme Court”).

      And the Fifth Circuit has reached the same conclusion—Olano abrogated its

precedent requiring reversal when a district court constructively amends an

indictment. See United States v. Fletcher, 121 F.3d 187, 193 (5th Cir. 1997)

(“Following Olano, this circuit . . . concluded that we have discretion to correct a

[constructive amendment]—an error that, prior to Olano, would have required

reversal per se.”).

      Because Carroll no longer binds us, we must decide what standard of review

applies in this case. We look to Olano to answer this question. Olano tells us that

we review a forfeited error for plain error. 507 U.S. at 732, 113 S. Ct. at 1776.

And we can only correct that error if all four prongs of the plain-error test are met.

Id. at 732, 113 S. Ct. at 1777 (“[A] court of appeals may correct the error . . . only

if it meets these criteria.” (second emphasis added)). To that end, we hold that we

may only reverse a defendant’s conviction based on an unobjected-to constructive

amendment if the constructive amendment satisfies the Olano plain-error standard.

That is, the amendment must (1) be an error (2) that is plain (3) that affects the


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defendant’s substantial rights and (4) that seriously affects the fairness, integrity, or

public reputation of judicial proceedings. Id. at 732, 113 S. Ct. at 1777.

       At least five of our sister circuits follow this approach: they do not require

reversal when a defendant fails to object to the district court’s constructive

amendment of an indictment, but instead, they apply Olano plain-error review. See

United States v. Bohuchot, 625 F.3d 892, 897 (5th Cir. 2010); United States v.

Gavin, 583 F.3d 542, 545–46 (8th Cir. 2009); United States v. Brandao, 539 F.3d

44, 57 (1st Cir. 2008); United States v. Brown, 400 F.3d 1242, 1253–54 (10th Cir.

2005); United States v. Remsza, 77 F.3d 1039, 1043 (7th Cir. 1996).

       Moreover, applying Olano’s plain-error review to unpreserved constructive

amendment challenges is not novel in this circuit; in fact, it comports (for the most

part) with our post-Olano case law on this issue. See Dortch, 696 F.3d at 1112

(reviewing an unobjected-to constructive amendment for plain error); United States

v. Starke, 62 F.3d 1374, 1380–81 (11th Cir. 1995) (same); United States v. Flynt,

15 F.3d 1002, 1006 (11th Cir. 1994) (same). 5



       5
         Madden cites five cases for the proposition that a constructive amendment is a per se
reversible error. But these cases do not alter our conclusion because they involve defendants
who objected to the district court’s constructive amendment. See United States v. Cancelliere,
69 F.3d 1116, 1119 (11th Cir. 1995) (the court permitted a redaction of the indictment “[o]ver
objection”); United States v. Artrip, 942 F.2d 1568, 1570 (11th Cir. 1990) (the defendant
proposed his own jury instructions, which the court refused to give); United States v. Weissman,
899 F.2d 1111, 1113 (11th Cir. 1990) (the district court supplemented its jury instructions “after
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        The only outlying case in our post-Olano case law is United States v.

Williams, 527 F.3d 1235 (11th Cir. 2008). In Williams, the defendant failed to

object to the district court’s instructions that she argued on appeal constructively

amended her indictment. Id. at 1245–46 & n.8. Discussing the standard of review,

we said in a footnote:

       Normally, we review challenges to jury instructions not raised at trial
       for plain error, reversing only if the instructions were so clearly
       erroneous as to result in a likelihood of a grave miscarriage of justice
       or . . . seriously affect[ ] the fairness, integrity or public reputation of
       [the] judicial proceeding. Because Williams raises a constitutional
       challenge to this instruction under the Fifth Amendment’s grand jury
       requirement, however, we frame our review under the standard set
       forth in Stirone . . . . Indeed, Williams’s challenge goes to whether
       the district court, in giving those instructions, exceeded its
       jurisdiction.

Id. at 1246 n.8 (alterations in original) (citation omitted) (internal quotation marks

omitted). The footnote does not clearly identify “the standard set forth in Stirone,”

but insofar as that standard is that an unobjected-to constructive amendment

always requires reversal, Olano controls for the reasons we explained above.

Moreover, the Williams language quoted above is dicta—the court concluded that




entertaining . . . objections from counsel”); Stirone, 361 U.S. at 214, 80 S. Ct. at 271–72 (the
defendant objected to the constructive amendment). Although it is not clear from the opinion,
we can safely assume that the defendant in United States v. Behety objected to the constructive
amendment because the opinion is quick to point out that the defendant did not object to a
different issue on appeal and then proceeds to conduct a plain-error review. 32 F.3d 503, 510
(11th Cir. 1994).
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the district court did not constructively amend the indictment and therefore did not

reach the issue of whether such an amendment was reversible error. Id. at 1247.

“And dicta is not binding on anyone for any purpose.” Edwards v. Prime, Inc., 602

F.3d 1276, 1298 (11th Cir. 2010). Williams, therefore, does not affect our holding.

       In sum, we hold that Olano has abrogated Carroll to the extent that Carroll

always requires reversal when a district court constructively amends an indictment,

even when the defendant fails to object. In cases where the defendant fails to

object to a constructive amendment, we apply traditional plain-error review as

defined in Olano.

                                               2.

       We may reverse a conviction under plain-error review if we find that four

prongs are met: there must be (1) an error (2) that is plain and (3) that has affected

the defendant’s substantial rights; and if the first three prongs are satisfied, we may

exercise discretion to correct the error if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Olano, 507 U.S. at 732, 113

S. Ct. at 1776.6



       6
         Madden did not argue that the district court committed plain error in his initial brief,
and we generally refuse to consider arguments raised for the first time in an appellant’s reply
brief. See United States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir. 1996). Nevertheless, we
will consider whether the constructive amendment here amounts to plain error. The Government
addressed the issue. Cf. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th
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       First, the district court erred when it constructively amended the indictment

in violation of the Fifth Amendment. An error is a “[d]eviation from a legal rule.”

Id. at 732–33, 113 S. Ct. at 1777. Our case law establishes that constructively

amending an indictment is a departure from the legal rule that “a defendant can

only be convicted for a crime charged in the indictment.” Keller, 916 F.2d at 633.

       Second, the error was plain. “For a plain error to have occurred, the error

must be one that is obvious and is clear under current law.” Dortch, 696 F.3d at

1112 (quoting United States v. Carruth, 528 F.3d 845, 846 n.1 (11th Cir. 2008)). It

is clear that “in furtherance of” and “during and in relation to” are alternative

methods of conviction. See Timmons, 283 F.3d at 1251–53. And it is clear under

current law that a court errs when it allows for an alternative method of conviction

that is not included in the indictment. See United States v. Bizzard, 615 F.2d 1080,

1082 (5th Cir. 1980) (noting that because “the defendant was charged by the court

with an additional element not presented by the grand jury” and “the jury might

have convicted the [defendant] on that extraneous element, the district court’s error

is clearly reversible” (emphasis added)).



Cir. 2012) (noting that the purpose of the requirement that issues be raised in an initial brief is so
the responding party has an opportunity to respond in writing to the argument). And even if the
issue were not raised at all, we have the “power to notice a ‘plain error’ though it is not assigned
or specified.’” Silber v. United States, 370 U.S. 717, 718, 82 S. Ct. 1287, 1288 (1962) (quoting
United Bhd. of Carpenters & Joiners of Am. v. United States, 330 U.S. 395, 412, 67 S. Ct. 775,
784 (1947)).
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      Third, the error affected Madden’s substantial rights. A plain error affects

the defendant’s substantial rights when the error is “prejudicial.” Olano, 507 U.S.

at 734, 113 S. Ct. at 1778. That is, the error “affected the outcome of the district

court proceedings.” Id. at 734, 113 S. Ct. at 1778. Here, the error prejudiced

Madden.    Having considered the evidence received at trial, Count 2 of the

indictment, and the court’s jury instructions, we conclude that Madden may well

have been convicted on a charge not in the indictment. In the end, because we

cannot say “with certainty” that with the constructive amendment, Madden was

convicted solely on the charge made in the indictment, see Stirone, 361 U.S. at

217, 80 S. Ct. at 273, we hold that the amendment prejudiced him.

      Fourth, we find it self-evident in this case that the error seriously affects the

fairness, integrity, and public reputation of judicial proceedings. See United States

v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc) (“[C]onvicting a defendant

of an unindicted crime affects the fairness, integrity, and public reputation of

judicial proceedings in a manner most serious.”).




                                IV. CONCLUSION




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      Accordingly, we exercise our discretion under plain-error review and reverse

Madden’s conviction on Count 2. We affirm Madden’s other convictions. The

case is remanded to the district court for further proceedings consistent with this

opinion.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.




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