Molesworth

MEMORANDUM **

Molesworth appeals from his conviction and sentence for one count of corruptly endeavoring to obstruct the Internal Revenue Service (IRS), in violation of 26 U.S.C. § 7212 (a), and sixteen counts of filing false documents with the IRS, in violation of 26 U.S.C. § 7206 (1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We affirm Moleworth’s convictions, but vacate his sentence and remand.

Molesworth contends that the government constructively amended its indictment “[bjecause the Superseding Indictment charges that other individuals were the recipients of the transactions, but the 8300 Forms indicated that Molesworth intended to claim that he was the recipient.” We review this issue de novo. United States v. Bhagat, 436 F.3d 1140, 1145 (9th Cir.2006). “A constructive amendment exists if there is a complex of facts presented at trial distinctly different from those set forth in the indictment or if the crime charged in the indictment was substantially altered at trial, so that it was impossible to know whether the grand jury would have indicted for the crime actually *696 proved.” Id. (internal quotations, alteration, and punctuation…