Villasenor

MEMORANDUM *

Appellant Leonel Ernesto Villaseñor appeals the judgment and conviction imposed by the District of Arizona for conspiracy to possess with intent to distribute marijuana under 21 U.S.C. §§ 841 (a)(1), (b)(l)(B)(vii) and 846. Villaseñor argues four issues: 1) the district court constructively amended the indictment by broadening the scope of the conspiracy charged in its jury instruction; 2) the district court erred in concluding that the 21 U.S.C. § 851 information offered by the government was filed in compliance with the statute to enhance Villaseñor’s sentence; 3) the evidence was insufficient to sustain Villaseñor’s conviction for conspiracy to possess marijuana with intent to distribute; and 4) the district court improperly enhanced his sentence due to a finding that Villaseñor’s prior convictions were “controlled substance offenses.”

1. This court reviews de novo whether jury instructions constructively amended an indictment. United States v. *649 Pang, 362 F.3d 1187, 1193 (9th Cir.2004); United States v. Shryock, 342 F.3d 948, 988 (9th Cir.2003). Villaseñor had been charged with violating 21 U.S.C. §§ 841 and 846, and the date on which the charged conspiracy…