                    Case: 11-15737         Date Filed: 07/17/2012    Page: 1 of 4

                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15737
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 0:11-cr-60163-WJZ-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                     Plaintiff-Appellee,

                                                 versus

MATTHEW HYLTON,

llllllllllllllllllllllllllllllllllllllll                                 Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                            (July 17, 2012)

Before CARNES, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         Matthew Hylton appeals his conviction on one count of obtaining
              Case: 11-15737     Date Filed: 07/17/2012    Page: 2 of 4

citizenship by fraud, in violation of 18 U.S.C. § 1425(a). On appeal, Hylton

argues that the government’s theory at trial and the district court’s jury instructions

constructively amended his indictment. Specifically, he argues that the

government attempted to broaden the basis of conviction by indicating that his

fraud conviction could be based upon a crime other than the specific prior offense

cited in his indictment (armed bank robbery) and that the court’s jury instructions

bolstered the government’s actions.

      When raised for the first time on appeal, we review a claim of constructive

amendment under plain error. United States v. Rutherford, 175 F.3d 899, 906

(11th Cir. 1999).

      A “fundamental principle” derived from the Fifth Amendment is that “a

defendant can only be convicted for a crime charged in the indictment” because

“[i]t would be fundamentally unfair to convict a defendant on charges of which he

had no notice.” United States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990).

Hylton contends that his indictment was “constructively amended” by the

prosecutor’s actions and the jury instructions. See id.

      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.” Id. at 634.

                                          2
              Case: 11-15737     Date Filed: 07/17/2012   Page: 3 of 4

      In determining whether an indictment was constructively amended, we look

at whether the prosecutor’s actions or the court’s instructions, “viewed in context,”

literally or effectively expanded the indictment. United States v. Behety, 32 F.3d

503, 508-09 (11th Cir. 1994). Similarly, we “must analyze jury instructions in the

context of the evidence presented and the government’s theory at trial” in

determining whether a constructive amendment occurred. United States v.

Williams, 527 F.3d 1235, 1247 (11th Cir. 2008).

      Hylton has not shown that either the government’s theory at trial or the

court’s jury instructions constituted a constructive amendment of his indictment.

In context, neither of them indicated that Hylton’s fraud charge could be based

upon any prior crime other than the armed bank robbery that was referenced in the

indictment.

      During the trial, there were passing references to Hylton’s unlawful transfer

of a firearm, but these were made merely in the context of showing Hylton’s

involvement in the armed robbery. By contrast, the government referred to the

armed bank robbery dozens of times during the trial, including in opening

statements, in the questioning of several witnesses (including Hylton himself, who

admitted to the robbery), and in closing statements.

      The references to Hylton knowingly committing “a crime” were made in the

                                          3
              Case: 11-15737      Date Filed: 07/17/2012     Page: 4 of 4

context of referring to the question that Hylton had fraudulently answered:

whether he had “knowingly committed any crime or offense” for which he had not

been arrested. The references to “a crime” were also relevant to rebut Hylton’s

defense theory, which was that he could not be convicted because he did not know

that aiding an armed robbery was actually a criminal offense.

      The jury instructions similarly provide no support for Hylton’s argument.

The district court read the indictment to the jury and specifically cautioned that

Hylton was on trial “only for the specific offense alleged in the indictment.”

      The indictment was not amended by the actions of the government or the

district court. Upon review of the record and consideration of the parties’ briefs,

we affirm.

      AFFIRMED.1




      1
             Hylton’s request for oral argument is DENIED.

                                            4
