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[NOT FOR PUBLICATION]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

________

Gelpi, Assistant Federal Public Defender, on brief for appellant.

_____
Guillermo Gil, United
_____________

States Attorney, Maria M. Pabon,

______________

Assist

United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigat

_______________________
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

alleges

that: (1)

the government

and

amended

the indictment against him; and

General.

court constructively

(2) the court erred

in failing to give the proper jury instructions.

Appellant

illegally

U.S.C.

acquittal

was charged

reentering the

1326.

on

constructively

amended

We affirm.

in a

one count

indictment with

United

States in

violation of

At trial, appellant moved for

the

Appellant

ground

the

that

the

a judgment of

government

indictment since

the

had

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

supported only

a charge

the

facts

of attempted

presented at

reentry.

however, denied the motion for acquittal.

that the difference between

trial

amounted

only

Subsequently, the court

to

The

trial

court,

The court reasoned

the indictment and the proof

nonprejudicial

instructed the jury as if

at

variance.1

the crime

charged were attempted reentry.

____________________

1.

deported

separate

alien

can

violate Section

1326

in

three

ways: if he "enters," "attempts to enter" or "is at

any time found

in" the United States.

Rodriguez, 26 F.3d 4, 8 (1st Cir. 1994).

_________

See
___

United States v.
_____________

The

determinative issue

difference between

in

the indictment

trial amounted to a constructive

The former is

this case

is whether

and the proof

the

offered at

amendment or to a variance.

grounds for reversal per se.

___ __

Fisher, 3 F.3d 456, 463 (1st Cir. 1993).

______

The

United States v.
_____________

latter

is

grounds

for

reversal

substantial rights.

only

Id.
__

if

it

affects

defendant's

Appellant does not contend that the

differences in proof affected his substantial rights.

No constructive amendment occurred in the instant

constructive amendment

evidence

at trial

of an

and/or jury

indictment occurs

instructions

case.

when the

"broaden[] the
_______

possible bases for conviction from that which appeared in the

indictment."

(1985)

United States v.
______________

(emphasis in

Floresca,
________

original);

Miller, 471
______

see also
___ ____

U.S. 130,

United States
_____________

138

v.

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
______

amendment violates

U.S. 962 (1991).

both a defendant's fifth

constructive

amendment right

to be tried only on the charge made by the grand jury and his

sixth amendment right

him.

to be informed of

United States v. Kelly,

______________
_____

722 F.2d 873,

1983), cert. denied, 465 U.S. 1070 (1984).

____ ______

-3-

the charges against

876 (1st Cir.

Appellant was indicted for illegal

been

deported.

after

having

latter

is

He was

United States v.
______________

cert.
____

well.

As

Anderson, 987
________

of the

the former.

254 (9th

the

See
___

Cir.),

By indicting appellant

grand jury then necessarily charged

offense for

Since the different proof

elements of the offense

of

F.2d 251,

denied, 114 S.Ct. 157 (1993).

______

elements

attempt to reenter

appellant concedes,

included offense

for illegal reentry, the

all the

convicted of the

been deported.

a lesser

reentry after having

attempted reentry

as

at trial did not add to the

charged, appellant was not convicted

of

a crime

not

charged

in the

reasonably have been unaware of

against him.

(1st

Cir.

indictment.

Nor can

the nature of the accusation

See United States v. Arcadipane, 41 F.3d

___ ______________
__________

1994)

indictment gives

(no

he

material prejudice

defendant notice of the

as

long

as

1, 6

the

events charged and

the proof at trial centers on the same events).

Appellant also claims the court erred by not instructing

the jury

country

fact

to consider

whether he

attempted

the

only after the jury had considered whether he had in

reentered the

country

as charged

in the

Appellant did not object to the charge given.

review

to reenter

is limited to plain error.

49 F.3d 16, 22 (1st Cir. 1995).

indictment.

Therefore, our

United States v. Andujar,

_____________
_______

Since the evidence presented at trial did not

finding that appellant

reentered the country

support a

illegally, the

-4-

court committed no error,

much less plain error,

to give the requested instruction.

Affirmed.
________

See 1st Cir. Loc. R. 27.1.

___

in failing

-5-