United States v. Lorenzo Mendez

facts of the case, she ultimately “commit[ted] to lay aside those feelings and reach a

verdict based on the evidence presented and the court’s instructions.” Image Tech.

Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1220 (9th Cir. 1997). The court

had no obligation to strike the juror sua sponte.

The change in language between the indictment and jury instructions did not

amount to an unconstitutional “constructive amendment.” Mendez did not raise his

constructive amendment claim in the district court, so we review for plain error.

United States v. Ward, 747 F.3d 1184, 1188 (9th Cir. 2014). Because Mendez was

indicted for an attempt crime, the government did not need to show that the videos

were “mailed or actually transported,” so the variation in jury instructions omitting

2 that requirement “does not alter the behavior for which the defendant can be

convicted.” United States v. Garcia-Paz, 282 F.3d 1212, 1216 (9th Cir. 2002).

The district court did not err by applying a five-level sentencing enhancement,

finding that “the defendant engaged in a pattern of activity involving prohibited

sexual conduct.” U.S.S.G. § 4B1.5(b). We review de novo the district…