Wolfe

MEMORANDUM *

Zachary Huston Wolfe (‘Wolfe”) challenges his convictions for unlawfully receiving a firearm while under indictment for a felony in violation of 18 U.S.C. § 922 (n) (“Count 1”) and knowingly making false statements in order to obtain a firearm in violation of 18 U.S.C. § 922 (a)(6) (“Count 2”). Wolfe timely filed a notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291 .

*642 I. Variance From or Constructive Amendment of the Indictment

Wolfe was not denied his Fifth Amendment right to indictment by grand jury when the government introduced evidence that varied from the facts of his indictment. Specifically, the government introduced evidence of the November 1998 felony charge against Wolfe even though only the two December 1998 felony charges were listed in the federal indictment. Facts that vary from the allegations of an indictment are classified as either substantial “amendments” of or less substantial “variances” from an indictment. Amendments, whether constructive or literal, are per se unconstitutional. E.g., United States v. Pisello, 877 F.2d 762, 765 (9th Cir.1989). Variances, on the other hand, require reversal only if the defendant can…