                                    File Name: 11a0813n.06

                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                          No. 10-5149

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                     FILED
UNITED STATES OF AMERICA,                                                        Dec 06, 2011
          Plaintiff-Appellee,                                             LEONARD GREEN, Clerk

v.                                                        ON APPEAL FROM THE
                                                          UNITED STATES DISTRICT
ANTONIO B. GAINES,                                        COURT FOR THE EASTERN
                                                          DISTRICT OF TENNESSEE
          Defendant-Appellant.


                                                     /

Before:          MARTIN, GUY, and GRIFFIN, Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. Law enforcement officers searched a hotel room

occupied by Antonio Gaines and a co-defendant on March 28, 2009. The officers seized evidence

in the search, including 149.2 grams of a substance suspected to contain heroin. As a result of the

search and seizure, Gaines and his co-defendant were charged in a four-count indictment on June

9. Count Three of the indictment, the only Count at issue in this appeal, charged Gaines under 21

U.S.C. § 841(a)(1) and (b)(1)(B) with “possession with the intent to distribute one hundred grams

or more of a mixture and substance containing a detectable amount of heroin.” After the grand jury

returned the indictment, Drug Enforcement Administration laboratory results revealed that the 149.2

grams of seized substance submitted for analysis contained only 7.1 grams of heroin. Based on the

lab results, the government moved to change the indictment as to Count Three to “possession with
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United States v. Gaines
Page 2

the intent to distribute a quantity of a mixture and substance containing a detectable amount of

heroin.” The district court granted the motion. Gaines did not object to the motion and did not

object at trial when the jury was instructed according to the changed indictment.

       Gaines appeals his conviction under Count Three and argues that the change to the

indictment is an impermissible amendment warranting reversal of his conviction. For the reasons

that follow, we AFFIRM the decision of the district court.

                                                  I.

       “An amendment to an indictment occurs when there is an alteration, literal or in effect, in its

terms. Such amendments are deemed prejudicial per se and a conviction resting upon such an

amended indictment must be reversed.” United States v. Burkhart, 682 F.2d 589, 591 (6th Cir. 1982)

(citing United States v. Beeler, 587 F.2d 340 (6th Cir. 1979)). Ordinarily, this Court reviews de novo

whether a change to an indictment is an amendment or a variance. United States v. Prince, 214 F.3d

740, 756 (6th Cir. 2000). Gaines argues, without support beyond a citation to Prince, that de novo

review is the proper standard. However, Gaines failed to object to the change to the indictment in

district court. This Court reviews for plain error where an objection has not been raised in the

district court’s proceedings. Fed. R. Crim. P. 52(b); Johnson v. United States, 520 U.S. 461, 466-67

(1997) (citations omitted). This Court has held that where a defendant has failed to object to an

alleged constructive amendment, the Court will review for plain error. See, e.g., United States v.

Beasley, 583 F.3d 384, 389 (6th Cir. 2009); United States v. Budd, 496 F.3d 517, 528 (6th Cir.

2007). Plain error review is appropriate here for the same reason that it is appropriate in the case of

an alleged constructive amendment—a constructive amendment is as grave an offense against a
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United States v. Gaines
Page 3

defendant’s Fifth Amendment rights as is an amendment. As this Court has stated, “[a] constructive

amendment . . . is ‘a variance that is accorded the per se prejudicial treatment of an amendment,’

because, like an actual amendment, it infringes upon the Fifth Amendment’s grand jury guarantee.”

United States v. Chilingirian, 280 F.3d 704, 712 (6th Cir. 2002) (quoting United States v. Ford, 872

F.2d 1231, 1235 (6th Cir. 1989)).

        Under plain error review, “before an appellate court can correct an error not raised at trial,

there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’” Johnson, 520

U.S. at 466-67 (citation omitted). The phrase “affects substantial rights” means “in most cases . .

. that the error must have been prejudicial: It must have affected the outcome of the district court

proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993) (citations omitted). “If all three

conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but

only if (4) the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.’” Johnson, 520 U.S. at 467 (citation omitted).

                                                   II.

        We do not reach the question of whether the change in Gaines’s indictment is an amendment

because, under the plain error standard, this Court must find an error that affects “substantial rights,”

which this alleged error does not. Here, had the indictment not been changed, Gaines could still have

“be[en] found guilty of . . . an offense necessarily included in the offense charged.” Fed. R. Crim.

P. 31(c)(1); see United States v. Martinez, 430 F.3d 317, 340 (6th Cir. 2005). This Court has held

that “convict[ion] of a lesser-included offense . . . is perfectly appropriate under Federal Rule of

Criminal Procedure 31.”      United States v. Solorio, 337 F.3d 580, 590 (6th Cir. 2003). To his
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benefit, as a result of the change, he could no longer be convicted of the greater offense of

“possession with the intent to distribute one hundred grams or more of a mixture and substance

containing a detectable amount of heroin.” We find that the change to the indictment did not affect

Gaines’s substantial rights.

       For these reasons we AFFIRM the decision of the district court.
