Bernal-Jimenez

MEMORANDUM **

Defendant Armando Bernal-Jimenez appeals his convictions for (1) conspiracy to distribute narcotics, in violation of 21 U.S.C. §§ 841 (a)(1) and 846; (2) aiding and abetting the possession of narcotics with the intent to distribute, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841 (a)(1); and (3) possession of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924 (c)(l)(A)(i). Bernal-Jimenez argues that the district court constructively amended the indictment by instructing the jury on the elements of drug distribution, even though he was not charged with that substantive offense.

A defendant’s Fifth Amendment rights are violated “when the grand jury charges one crime and the jury convicts of another.” United States v. Solis, 841 F.2d 307, 308-09 (9th Cir.1988). In Solis , we reversed the defendants’ convictions for distributing heroin because the district court instructed the jury on heroin possession, *639 an offense not charged in the indictments. Bernal-Jimenez argues that his case is analogous to Solis because he was charged with conspiracy to distribute narcotics and aiding and abetting the possession of narcotics…