                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 15 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50400

              Plaintiff - Appellee,              D.C. No. 3:08-cr-4207-LAB

  v.
                                                 MEMORANDUM *
HECTOR CASTANEDA-MELCHOR,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                    Larry Alan Burns, District Judge, Presiding

                             Submitted July 13, 2010 **
                               Pasadena, California

Before: FARRIS and SILVERMAN, Circuit Judges, and CAMP, Senior District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Jack J. Camp, Senior United States District Judge for
the District of Northern Georgia, sitting by designation.
       Hector Castaneda-Melchor appeals his conviction for harboring illegal aliens

and for conspiracy to harbor illegal aliens. After considering his arguments and

the evidence presented at trial, we affirm his conviction.

       I.     Background

       United States Border Patrol agents arrested Castaneda-Melchor after finding

eleven illegal aliens hidden in his trailer home in Calexico, California on

November 21, 2008. He was indicted on four counts of harboring illegal aliens

“with the intent to violate the immigration laws of the United States,” in violation

of 8 U.S.C. § 1324(a)(1)(A)(iii) and (v)(II), and one count of conspiracy to harbor

illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A),(ii), (iii) and (v)(I).

       At trial, four of the aliens testified that Castaneda-Melchor had hidden them

in his trailer and instructed them in how to avoid detection by federal immigration

authorities. Over his objection, the district court used the Ninth Circuit Pattern

Instruction for the offense and instructed the jury to find the defendant guilty if it

found that he had “concealed [illegal aliens] for the purpose of avoiding their

detection by immigration authorities.” After deliberating, the jury convicted

Castaneda-Melchor of all five counts. Subsequently, the district court sentenced

Castaneda-Melchor to 30 months imprisonment, followed by three years

supervised release.


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        II.    Defendant’s Contentions

        Castaneda-Melchor appeals his convictions. He argues that the jury

instructions given by the district court constructively amended the indictment in his

case by significantly broadening the offense charged. In the alternative, he argues

that the jury instructions were a fatal variance from the indictment. Finally, he

contends that this Court should vacate his conspiracy conviction if it vacates his

conviction for harboring illegal aliens. We affirm his conviction for the reasons

discussed below.

        III.   Analysis

        This Court reviews an allegation that the district court constructively

amended an indictment or permitted a variance of an indictment de novo. United

States v. Adamson, 291 F.3d 606, 612 (9th Cir. 2002); United States v. Bhagat,

436 F.3d 1140, 1145 (9th Cir. 2006). “A constructive amendment mandates per se

reversal, however, a variance warrants reversal only if the defendant’s ‘substantial

rights’ were affected.” Bhagat, 436 F.3d at 1145 (quoting Adamson, 291 F.3d at

615).

        A constructive amendment exists where “(1) there is a complex of facts

presented at trial distinctly different from those set forth in the charging

instrument, or (2) the crime charged in the indictment was substantially altered at


                                            3
trial, so that it was impossible to know whether the grand jury would have indicted

for the crime actually proved.” United States v. Abramson, 291 F.3d 606, 615 (9th

Cir. 2002) (quoting United States v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984)).

      The jury instructions did not constructively amend the indictment in this

case because, according to binding precedent in this Circuit, the language

contained in the indictment (“with the intent to violate the immigration laws of the

United States”) is synonymous with the language used in the jury instructions (“for

the purpose of avoiding [the aliens’] detection by immigration authorities”).

United States v. You, 382 F.3d 958, 966 (9th Cir. 2004).

      In You, this Court considered an appeal by two defendants convicted of

harboring illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). Id. at 962.

The district court instructed the jury that it could find the defendants guilty if it

found that they had “harbored . . . [an illegal alien] for the purpose of avoiding [the

alien’s] detection by Immigration authorities.” Id. at 963. On appeal, they argued

that the jury instructions misstated the elements of § 1324 by failing to require the

jury to find that the defendants had intended to violate the law. Id. at 965-66. In

affirming the convictions, this Court held that the phrases “for the purpose of

avoiding [the aliens’] detection” and “that the defendant intended to violate the




                                            4
law” are interchangeable and that both phrases contain the necessary mens rea for a

conviction under § 1324. Id.

      You controls in this case, and it holds that the language used in Castaneda-

Melchor’s jury instruction is synonymous with the language used in the

indictment. Therefore, the jury instructions did not alter the crime charged in the

Castaneda-Melchor indictment. Abramson, 291 F.3d at 615; Von Stoll, 726 F.2d

at 586.

      In the alternative, Castaneda-Melchor argues that if the jury instructions did

not constructively amend the indictment, they constituted a fatal variance from it.

He contends that although the evidence may have showed that he concealed aliens

for the purpose of avoiding their detection by immigration officers, no evidence

was presented at trial that he intended to violate immigration laws. This semantic

distinction does not help Castaneda-Melchor.

      This Court has explained that a fatal variance occurs where “the evidence

offered at trial proves facts materially different from those alleged in the

indictment” and if the variance affects the defendant’s substantial rights. Von

Stoll, 726 F.2d at 586; Bhagat, 436 F.3d at 1146. Where the difference between

the proof offered at trial and the events alleged in the indictment is so minor as to




                                           5
not mislead the defendant in preparing his defense, the variance is not fatal. United

States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir. 1997).

      The evidence offered at trial did not prove facts that are materially different

from those alleged in the indictment. The evidence at trial showed that eleven

illegal aliens were found hidden in Castaneda-Melchor’s house, and that

Castaneda-Melchor had told the aliens that they might be discovered if they looked

outside. If difference exists between the evidence offered at trial and the acts

charged in the indictment, it is so minor that it could not have misled the defendant

in preparing for his trial. Id. Therefore, the evidence at trial was not a fatal

variance from the indictment.

      Finally, Castaneda-Melchor argued that, if this Court vacated his conviction

for harboring illegal aliens it should also vacate his conviction for conspiracy to

harbor illegal aliens. Because this Court declines to vacate the conviction for

harboring illegal aliens, it need not reach Castaneda-Melchor’s argument regarding

his conspiracy conviction. Accordingly, this Court affirms Castaneda-Melchor’s

convictions for harboring illegal aliens and for conspiracy to harbor illegal aliens.

      IV.    Conclusion

      In conclusion, Castaneda-Melchor has not demonstrated that the district

court’s instructions to the jury constructively amended the indictment in his case.


                                           6
Nor has he demonstrated that a fatal variance exists in his case. Therefore, the

Court AFFIRMS his conviction.




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