United States v. Lester Decker

MEMORANDUM

Lester Decker appeals from a judgment of conviction for attempted aggravated sexual abuse in violation of 18 U.S.C. §§ 2241 (a), 1151, 1153. He also appeals his sentence of 190 months’ imprisonment. We have jurisdiction under 18 U.S.C. § 3742 (a) and 28 U.S.C. § 1291 , and we affirm.

1. Decker argues that his conviction should be reversed because the prosecution constructively amended the indictment. Constructive amendments violate a defendant’s Fifth Amendment right to stand trial only on charges made by a grand jury in its indictment. See United States v. Adamson, 291 F.3d 606, 614 (9th Cir.2002), modified on other grounds by United States v. Larson, 495 F.3d 1094 (9th Cir.2007) (en banc). “A constructive amendment occurs when the defendant is charged with one crime but, in effect, is tried for another crime.” United States v. Pang, 362 F.3d 1187, 1194 (9th Cir.2004). We have “found constructive amendment of an indictment where ... there is a complex of facts presented at trial distinctly different from those set forth in the charging instrument, or the crime charged in the indictment was substantially altered at trial, so that it was impossible to know whether the…