Knopfle

MEMORANDUM *

Timothy Knopfle (“Knopfle”) appeals his conviction for knowingly discharging oil into Flathead Lake in Montana and for failing to notify the appropriate federal authorities of the discharges under the Clean Water Act. See 33 U.S.C. §§ 1321 (b)(3), 1321(b)(5), 1319(c)(2)(A). The government cross-appeals the district court’s sentence, challenging the district court’s decision to grant Knopfle a two-level downward adjustment for acceptance of responsibility and to sentence Knopfle to community confinement in lieu of imprisonment. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm in part, vacate in part, and remand.

I. Knopfle’s Appeal

A. Constructive Amendment

Knopfle argues that the dismissal of the charges against Advanced Docks and Decks, Inc. (“the Corporation”) constituted a constructive amendment. We review de novo Knopfle’s claim of constructive amendment. United States v. Adamson, 291 F.3d 606, 612 (9th Cir.2002).

An indictment is constructively amended when “(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…