
USCA1 Opinion

	




          November 29, 1995     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1924                                     UNITED STATES,                                      Appellee,                                          v.                HENRY ANTONIO SANTANA, a/k/a WILLIAM ALFREDO PANTOJAS,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Benicio Sanchez  Rivera, Federal Public  Defender, and Gustavo  A.            _______________________                                ___________        Gelpi, Assistant Federal Public Defender, on brief for appellant.        _____            Guillermo Gil, United  States Attorney, Maria M. Pabon,  Assistant            _____________                           ______________        United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation                                    _______________________        Counsel, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Appellant Henry Antonio Santana appeals his                 __________            conviction  on the charge of attempting to reenter the United            States, after previously having been deported, without having            obtained the  permission of the Attorney  General.  Appellant            alleges  that: (1)  the government  and  court constructively            amended  the indictment against him; and  (2) the court erred            in failing to give the proper jury instructions.  We affirm.                 Appellant  was charged  in a  one count  indictment with            illegally  reentering the  United  States in  violation of  8            U.S.C.   1326.   At trial, appellant moved for  a judgment of            acquittal   on   the   ground   that   the   government   had            constructively  amended  the  indictment since  the  evidence            showed that appellant was guilty at most of attempted reentry            not the  reentry for which he  had been indicted.   The court            agreed  with  appellant that  the  facts  presented at  trial            supported only  a charge  of attempted  reentry.  The  court,            however, denied the motion for acquittal.  The court reasoned            that the difference between  the indictment and the proof  at            trial   amounted  only   to   a   nonprejudicial   variance.1            Subsequently, the court  instructed the jury as if  the crime            charged were attempted reentry.                                              ____________________            1.  A  deported  alien  can  violate Section  1326  in  three            separate  ways: if he "enters," "attempts to enter" or "is at            any time found  in" the United States.  See  United States v.                                                    ___  _____________            Rodriguez, 26 F.3d 4, 8 (1st Cir. 1994).            _________                 The  determinative issue  in  this case  is whether  the            difference between  the indictment  and the proof  offered at            trial amounted to a constructive  amendment or to a variance.            The former is  grounds for reversal per se.  United States v.                                                ___ __   _____________            Fisher, 3 F.3d 456, 463 (1st Cir. 1993).  The    latter    is            ______            grounds  for  reversal  only  if  it  affects  a  defendant's            substantial rights.  Id.  Appellant does not contend that the                                 __            differences in proof affected his substantial rights.                 No constructive amendment occurred in the instant  case.            A  constructive amendment  of an  indictment occurs  when the            evidence  at trial  and/or jury  instructions  "broaden[] the                                                            _______            possible bases for conviction from that which appeared in the            indictment."   United  States v.  Miller, 471  U.S. 130,  138                           ______________     ______            (1985)  (emphasis in  original);  see also  United States  v.                                              ___ ____  _____________            Floresca,  38 F.3d 706, 710 (4th Cir. 1994); United States v.            ________                                     _____________            Rosenthal, 9 F.3d 1016, 1021 (2d Cir. 1993); United States v.            _________                                    _____________            Kramer, 955 F.2d 479, 487 (7th Cir.), cert. denied, 113 S.Ct.            ______                                ____  ______            595  (1992); United States v. Wright, 932 F.2d 868, 864 (10th                         _____________    ______            Cir.), cert.  denied, 502  U.S. 962 (1991).   A  constructive                   ____   ______            amendment violates  both a defendant's fifth  amendment right            to be tried only on the charge made by the grand jury and his            sixth amendment right  to be informed of  the charges against            him.   United  States v. Kelly,  722 F.2d 873,  876 (1st Cir.                   ______________    _____            1983), cert. denied, 465 U.S. 1070 (1984).                     ____  ______                                         -3-                 Appellant was indicted for illegal  reentry after having            been  deported.  He was  convicted of the  attempt to reenter            after  having  been deported.    As  appellant concedes,  the            latter  is  a lesser  included offense  of  the former.   See                                                                      ___            United  States v.  Anderson, 987  F.2d 251,  254 (9th  Cir.),            ______________     ________            cert.  denied, 114 S.Ct. 157 (1993).   By indicting appellant            ____   ______            for illegal reentry, the  grand jury then necessarily charged            all the  elements  of the  offense for  attempted reentry  as            well.  Since the different proof  at trial did not add to the            elements of the offense  charged, appellant was not convicted            of  a crime  not  charged  in the  indictment.    Nor can  he            reasonably have been unaware of  the nature of the accusation            against him.  See United  States v. Arcadipane, 41 F.3d  1, 6                          ___ ______________    __________            (1st  Cir.  1994)  (no  material prejudice  as  long  as  the            indictment gives  defendant notice of the  events charged and            the proof at trial centers on the same events).                 Appellant also claims the court erred by not instructing            the jury  to consider  whether he  attempted  to reenter  the            country  only after the jury had considered whether he had in            fact  reentered the  country  as charged  in the  indictment.            Appellant did not object to the charge given.  Therefore, our            review  is limited to plain error.  United States v. Andujar,                                                _____________    _______            49 F.3d 16, 22 (1st Cir. 1995).                   Since the evidence presented at trial did not  support a            finding that appellant  reentered the country  illegally, the                                         -4-            court committed no error,  much less plain error,  in failing            to give the requested instruction.                 Affirmed.  See 1st Cir. Loc. R. 27.1.                 ________   ___                                         -5-
