1

United States Court of Appeals

Fifth Circuit

FILED

July 3, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________

No. 06-50272

______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HUGH DOUGLAS DENTLER,

Defendant-Appellant.

________________________________________________

On Appeal from the United States District Court for the

Western District of Texas, San Antonio Division

No. 5:05-cr-00212-FB-ALL

________________________________________________

Before DAVIS, DENNIS, and PRADO, Circuit Judges.

DENNIS, Circuit Judge:

Defendant Hugh Douglas Dentler was indicted for and

convicted of federal bank robbery in violation of 18

U.S.C. § 2113(a). The district court sentenced him to 240

months of imprisonment. Dentler now appeals both his

sentence and his conviction. He argues that the

indictment was insufficient, because it failed to state

a necessary element of the charged crime, and that the
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instructions given to the jury worked an impermissible

constructive amendment. He also argues that the district

court incorrectly held that his crime constituted a crime

of violence and therefore improperly increased his

sentence range under the Guidelines. For the reasons

discussed below, we AFFIRM his conviction, but VACATE his

sentence and REMAND the case for resentencing.

I.

Dentler was indicted for federal bank robbery in

violation of 18 U.S.C. § 2113(a). That statute imposes a

maximum sentence of twenty years on anyone who

. . . by force and violence, or by intimidation,

takes, or attempts to take, from the person or

presence of another, or obtains or attempts to

obtain by extortion any property or money or any

other thing of value belonging to, or in the

care, custody, control, management, or

possession of, any bank, credit union, or any

savings and loan association; or

. . . enters or attempts to enter any bank,

credit union, or any savings and loan

association, or any building used in whole or in

part as a bank, credit union, or as a savings

and loan association, with intent to commit in

such bank, credit union, or in such savings and

loan association, or building, or part thereof,

so used, any felony affecting such bank, credit

union, or such savings and loan association and

in violation of any statute of the United
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States, or any larceny[.]

By contrast, the single count in Dentler's indictment

alleged that he

did attempt to enter Texstar Bank and the

building used in whole or in part as a bank,

with the intent to commit the felony offense of

robbery, by taking and attempting to take from

the person or presence of another, money

belonging to and in the care, custody, control,

management, and possession of the Texstar Bank,

a bank whose deposits were then insured by the

Federal Deposit Insurance Corporation, in

violation of 18 U.S.C. Section 2113(a).

Dentler moved to dismiss the indictment, urging that it

failed to state an offense under the statute because it

failed to charge either (1) that the attempted taking

involved force, violence, or intimidation or (2) that his

intended felony affected the bank. At the close of the

jury trial, his counsel objected to the jury instructions

on the grounds that the indictment confused the two

separate crimes defined under section 2113(a), depriving

him of notice as to which provision he was expected to

defend against. The objection was overruled, and the jury

found Dentler guilty.

At sentencing, the district court held that Dentler's
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conviction constituted a crime of violence and, as a

result, labeled Dentler a career offender under U.S.S.G.

§ 4B1.1. As a result, Dentler's offense level rose from

29 to 32, and his resulting advisory guideline sentence

range rose from 140-175 months to 210-262 months. Dentler

ultimately received a sentence of 240 months of

imprisonment, the statutory maximum for the offense. He

timely appeals, challenging both his conviction and his

sentence.

II.

Dentler argues that the indictment fails to allege an

offense under 18 U.S.C. § 2113(a) because it fails to

state a full set of elements for either of the offenses

laid out in the statute. He also urges that the jury

instructions constructively, and therefore impermissibly,

amended his indictment by including an offense element

not charged in the original indictment. We address each

argument in turn.

A.

A challenge to the sufficiency of the indictment is

reviewed de novo. United States v. Partida, 385 F.3d 546,
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554 (5th Cir. 2004). A grand jury indictment must “set

forth each essential element of an offense.” United

States v. Wilson, 884 F.2d 174, 179 (5th Cir. 1989). To

be valid, an indictment “must charge positively and not

inferentially everything essential.” Wilkins v. United

States, 376 F.2d 552, 562 (5th Cir. 1967). Moreover, a

valid indictment must set forth the alleged offense “with

sufficient clarity and certainty to apprise the accused

of the crime with which he is charged.” United States v.

Kay, 359 F.3d 738, 742 (5th Cir. 2004). In determining

whether an indictment is sufficient, we do not ask

whether the indictment could have been better

drafted, but whether it conforms to minimal

constitutional standards. These minimum

constitutional standards are met where the

indictment alleges “every element of the crime

charged and in such a way ‘as to enable the

accused to prepare his defense and to allow the

accused to invoke the double jeopardy clause in

any subsequent proceeding.’”.

United States v. Gonzalez, 436 F.3d 560, 569 (5th Cir.

2006) (internal citations omitted); see also United

States v. Threadgill, 172 F.3d 357, 366 (5th Cir. 1999)

(quoting United States v. Lavergne, 805 F.2d 517, 521

(5th Cir. 1986)). 
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We have, therefore, held that so long as an

indictment as a whole “fairly imports” an element, “an

exact recitation of [that] element . . . is not

required.” United States v. Harms, 442 F.3d 367, 372 (5th

Cir. 2006). “We generally . . . will not reverse for

‘minor deficiencies that cause no prejudice.’” United

States v. Guzman-Ocampo, 236 F.3d 233, 236 (5th Cir.

2000) (quoting United States v. Gaytan, 74 F.3d 545, 551

(5th Cir. 1996)). Thus, even where an objection has been

raised at trial, we have upheld the validity of an

indictment despite the fact that particular language was

not used to identify a key element, so long as “the

language of the indictment demonstrates adequately” that

the element is required. See, e.g., Haas, 583 F.2d at 218

(“[T]he indictment . . . need not contain technical terms

of knowledge and intent if it recites facts and uses

language which, taken as a whole, indicate knowledge and

intent and that the indictment contains sufficient

factual data to withstand a motion to dismiss.”).

The statute at issue in this case, 18 U.S.C. §

2113(a), describes two separate offenses. United States
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v. McGhee, 488 F.2d 781, 784 (5th Cir. 1974). The first

paragraph criminalizes bank robbery (or an attempt) that

uses force, violence, or intimidation. United States v.

Bellew, 369 F.3d 450, 454 (5th Cir. 2004). That crime

requires that the government prove the following

elements:

(1) an individual or individuals (2) used force

and violence or intimidation (3) to take or

attempt to take (4) from the person or presence

of another (5) money, property, or anything of

value (6) belonging to or in the care, custody,

control, management, or possession (7) of a

bank, credit union, or savings and loan

association. 

Id.

The second paragraph, by contrast, allows for a

conviction where “if at the time [a] person attempts to

enter a bank he intends to commit any felony affecting

the bank.” United States v. Jones, 993 F.3d 58, 60 (5th

Cir. 1993). To convict under that paragraph, the

government must prove the following elements: (1) an

entry or an attempt to enter (2) any bank, credit union,

or any savings and loan association (or building used in

whole or part as such), (3) with the intent to commit
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there (4) any felony (5) affecting such bank, credit

union, or savings and loan association. 18 U.S.C. §

2113(a).

Dentler's indictment, by comparison, asserts the

following:

[1] Dentler attempted to enter

[2] TexStar Bank

[3] intending to commit

[4] the felony offense of robbery

[5] by taking and attempting to take

[6] from the person or presence of another

[7] money

[8] belonging to and in the care, custody,

control, management, and possession of

TexStar Bank.

As such, his indictment fails to assert, on its face, a

full set of elements for either crime: it is missing

either the allegation that Dentler intended a taking “by

force and violence or intimidation” (under the first

paragraph of section 2113(a)) or that the felony he

intended to commit at the time he entered the bank

affected the bank (under the second paragraph of section

2113(a)).

Dentler argues that the indictment was in error; the

government counters that in charging Mr. Dentler with

attempting to enter a bank while intending to rob someone
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of the bank’s money, the indictment is sufficient in

indicating that Dentler’s crime affected the bank. We

need not address this question, because even assuming,

arguendo, that the indictment was in error, any such

error is harmless. See United States v. Robinson, 367

F.3d 278, 286-87 (5th Cir. 2004) (failure to include an

offense element in an indictment is reviewed for harmless

error where, as here, it was properly raised at trial)

(citing Neder v. United States, 527 U.S. 1, 8 (1999), and

United States v. Cotton, 535 U.S. 625, 627 (2002)); see

also United States v. Baptiste, 309 F.3d 274, 277 (5th

Cir. 2002) (per curiam) (on petition for rehearing);

United States v. Matthews, 312 F.3d 652, 665 (5th Cir.

2003). Under the harmless error standard, the “question

is whether the error affects substantial rights.”

Robinson, 367 F.3d at 286-87 (citing Fed. R. Crim. P.

52(a)). 

An indictment serves two major functions:

it (1) provides notice of the crime for which

the defendant has been charged, allowing him the

opportunity to prepare a defense, and (2)

interposes the public into the charging

decision, such that a defendant is not subject

to jeopardy for a crime alleged only by the
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prosecution.

Robinson, 367 F.3d at 287 (citations omitted).

Accordingly, in determining whether any error by the

district court was harmless, we ask (1) whether the

indictment provided Dentler sufficient notice of the

crime with which he had been charged and (2) whether

Dentler was harmed by “losing the right to have the

public determine whether there existed probable cause to

charge” the missing element. See Robinson, 367 F.3d at

287.

We first consider whether the indictment provided

Dentler with sufficient notice of the crime with which he

was charged. At trial, the government argued that the

indictment intended to charge Dentler with attempted bank

robbery under the second paragraph of section 2113.

Dentler, however, argues that the indictment failed to

give him sufficient notice because it did not state that

his intended felony was one that “affected the bank.” We

disagree. The indictment plainly states that Dentler

stands accused of an attempt to enter the bank to commit

robbery by taking money belonging to that bank. Although
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the indictment could have drafted with greater skill, we

cannot read it to accuse Dentler of anything but

attempting to enter with the intent to commit bank

robbery, despite the absence of a specific reference to

“bank robbery” or the inclusion of the missing element of

bank robbery, i.e., the use of force or intimidation.

Accordingly, we find that the indictment gave Dentler

sufficient notice.

We must then consider whether Dentler suffered harm

in losing the right to have the public determine whether

there existed probable cause to charge the missing

element. In this case, the element in question is “the

use of force or violence.” Had that element been

included, Dentler’s indictment under section 2113(a)

would have charged him with the attempt to enter a bank

and listed all of the elements of his intended felony

(bank robbery). See United States v. Jones, 993 F.2d 58,

61-62 (5th Cir. 1993) (approving of an indictment that

charged a violation of paragraph two of § 2113(a), where

the felony in question was bank larceny and the

indictment listed all of the essential elements of bank
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larceny as well as the elements of § 2113(a)'s second

paragraph).

“Once a trial takes place . . . there is little a

court of appeals can do to restore to a defendant that

which was lost: the right not to face a prosecution

initiated solely at the government's behest.” Robinson,

367 F.3d at 287 (citing United States v. Mechanik, 475

U.S. 66, 71 (1986)). On appeal, then, we consider only

“whether, on the basis of the evidence that would have

been available to the grand jury, any rational grand jury

presented with a proper indictment would have charged

that [the defendant] committed the offense in question.”

Id. at 288 (citing Matthews, 312 F.3d at 665). 

In conducting that examination, we may consider “the

petit jury's unanimous findings --- which [are

considered] to be, at a minimum, persuasive evidence of

how a grand jury would find.” Robinson, 367 F.3d at 288.

Our holding in Robinson relies on the Supreme Court's

ruling in Mechanik, where the Court held that while a

procedural error before the grand jury 

had the theoretical potential to affect the

grand jury’s determination whether to indict
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these particular defendants for the offenses

with which they were charged . . . [,] [t]he

petit jury’s subsequent guilty verdict means not

only that there was probable cause to believe

that the defendants were guilty as charged, but

also that they are in fact guilty as charged

beyond a reasonable doubt. Measured by the petit

jury’s verdict, then, any error in the grand

jury proceeding connected with the charging

decision was harmless beyond a reasonable doubt.

Mechanik, 475 U.S. at 70. 

Here, the petit jury was specifically asked, in the

jury instructions, whether Dentler intended the use of

force and violence or intimidation; it unanimously found

that he did. In addition, the evidence before the jury

also included the fact that the man wore a mask; that his

attempts to open the doors were “forceful”; that he

repeatedly reached for a bulge in his pocket; that at

least one teller testified that he thought the man had a

gun; that the gun was linked to ammunition found in

Dentler’s truck; and that Dentler’s checkbook showed a

sketch of the bank area. Given such evidence, we are

compelled to hold that a rational grand jury could find

probable cause existed to charge Dentler with the use of

force and violence or intimidation. As a result, we find

no error in the indictment affecting Dentler’s
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substantial rights, and we hold that “any error in the

grand jury proceeding connected with the charging

decision was harmless beyond a reasonable doubt.”

Mechanik, 475 U.S. at 70.

B.

Dentler next argues that language used in his jury

instructions, which incorporates the force, violence, or

intimidation element of bank robbery, operated as an

impermissible constructive amendment to his indictment.

A constructive amendment occurs when “the jury is

permitted to convict the defendant based on an

alternative basis permitted by the statute but not

charged in the indictment.” United States v. Partida, 385

F.3d 546, 557 (5th Cir. 2004); see also United States v.

Reasor, 418 F.3d 466, 474 (5th Cir. 2005). We have held

that

“[t]he accepted test is that a constructive

amendment of the indictment occurs when the jury

is permitted to convict the defendant upon a

factual basis that effectively modifies an

essential element of the offense charged [in the

indictment]. . . . In such cases, reversal is

automatic, because the defendant may have been

convicted on a ground not charged in the

indictment.” 
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United States v. Chambers, 408 F.3d 237, 241 (5th Cir.

2005) (quoting United States v. Adams, 778 F.2d 1117,

1123 (5th Cir. 1985)). We have cautioned, however, that

to merit reversal, the difference between the indictment

and the jury instruction must “allow[] the defendant to

be convicted of a separate crime from the one for which

he was indicted. Otherwise, he will have to show how the

variance in the language between the jury charge and the

indictment so severely prejudiced his defense that it

requires reversal under harmless error review.” United

States v. Nunez, 180 F.3d 227, 231 (5th Cir. 1999). If,

however, “it is clear that this could not have been the

case, the trial court's refusal to restrict the jury

charge to the words of the indictment is merely another

of the flaws in the trial that mar its perfection but do

not prejudice the defendant.” Id. (quoting United States

v. Ylda, 653 F.2d 912, 913 (5th Cir. Unit A Aug. 1981)).

In Dentler's case, again, his indictment charged him

with

attempt[ing] to enter Texstar Bank and the

building used in whole or in part as a bank,

with the intent to commit the felony offense of

robbery, by taking and attempting to take from
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the person or presence of another, money

belonging to and in the care, custody, control,

management, and possession of the Texstar Bank,

a bank whose deposits where then insured by the

Federal Deposit Insurance Corporation, in

violation of 18 U.S.C. Section 2113(a).

The jury instructions, by contrast, required the jury to

find each of the following beyond a reasonable doubt:

First: That the defendant attempted to enter a

federally insured bank with the intent to do the

following:

Second: That the defendant intentionally

attempted to take from the person or presence of

another money;

Third: That the money belonged to or was in the

possession of a federally insured bank at the

time of the attempted taking; and

Fourth: That the defendant attempted to take the

money by means of force and violence or by means

of intimidation.

Dentler argues that the addition of the fourth jury

instruction, regarding the use of force, violence, or

intimidation, constitutes an impermissible constructive

amendment.

During trial, both parties argued repeatedly that

force or intimidation was required. Unlike cases such as

Nunez, in which the jury instructions permitted the

defendant to be convicted of a lesser offense than that
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for which he was indicted, or Stirone, where the facts

underlying the conviction dealt with an entirely

different set of facts than those on which the defendant

was convicted, Mr. Dentler was not convicted for

something far different than that for which he was

indicted. The language has not “permitted [the jury] to

convict the defendant upon a factual basis that

effectively modifies an essential element of the offense

charged.” United States v. Adams, 778 F.2d 1117, 1123

(5th Cir. 1985). The additional language in the jury

instruction is therefore properly considered a variance,

rather than an amendment, and is subject to the same

harmless error review discussed in the preceding section.

For the same reasons, Dentler’s arguments fail, and we

again find that any error resulting from such a variance

was harmless.

III.

Dentler challenges his sentence, arguing that the

district court wrongly classed his offense as a crime of

violence under the career offender provisions of the

sentencing guidelines. Dentler did not raise this
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objection before the district court; as a result, we

review his challenge under the plain error standard.

United States v. Gonzalez-Chavez, 432 F.3d 334, 336 (5th

Cir. 2005). Dentler must therefore demonstrate (1) error

(2) that was clear or obvious and that (3) affected his

substantial rights. If Mr. Dentler succeeds in this

showing, we may correct the error only if (4) it

seriously affects the fairness, integrity, or public

reputation of the judicial proceedings. Id. at 336-37. 

To be considered a crime of violence under the

sentencing guidelines, Dentler’s offense must either (1)

“ha[ve] as an element the use, attempted use, or

threatened use of physical force against the person of

another[;]” (2) “otherwise involve[] conduct that

presents a serious potential risk of physical injury to

another[;]” or (3) fall within a list of enumerated

crimes, including robbery. U.S.S.G. § 4B1.2 (a) & cmt

n.1. 

18 U.S.C. § 924(c) sets out a definition for crimes

of violence very similar to that used by the Sentencing

Guidelines. We have held that the second paragraph of §
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2113(a) (under which Dentler was convicted) does not

constitute a crime of violence under that definition.

United States v. Jones, 993 F.2d 58, 61-62 (5th Cir.

1993). 

The government concedes that the holding in Jones

governs this case. Moreover, it does not challenge

Dentler’s assertion that his offense does not meet the

definition of the enumerated offense of robbery. The

government does argue, however, that because the district

court made numerous comments at sentencing suggesting

that it sought to impose the highest sentence possible on

Dentler, “there is a reasonable probability that the

court would not impose a lesser sentence on remand” and

therefore Dentler cannot show plain error.

This argument fails. “[I]f a sentence is imposed ‘as

a result of an incorrect application of the sentencing

guidelines’ the sentence must be vacated and the case

remanded for further sentencing proceedings.” United

States v. Tzep-Mejia, 461 F.3d 522, 526 (5th Cir. 2006).

The district court’s error in classing Dentler’s offense

as a crime of violence resulted in a sentencing range
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where the lowest possible sentence is 65 months higher

than the top of the range he should have received ---

such a gap affects his substantial rights. See United

States v. Villegas, 404 F.3d 355, 365 (5th Cir. 2005)

(“Because these two sentencing ranges do not overlap, the

district court's error necessarily increased Villegas’s

sentence and thus affected his substantial rights.”).

Dentler has satisfied his burden under the plain error

standard, having established that “that the district

court misapplied the Guidelines in calculating the

sentencing range, the court imposed a sentence under the

. . . Guidelines based on that miscalculation, and the

sentence was higher than the correct range under the

Guidelines.” Id. Accordingly, we vacate his sentence and

remand the case for resentencing.

CONCLUSION

Because we find that any error in Dentler’s

indictment and any variance between his indictment and

the jury instructions were harmless, we AFFIRM his

conviction. However, as the district court erred in

labeling Dentler’s crime a crime of violence, and
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therefore improperly increased his sentence range under

the Guidelines, VACATE his sentence and REMAND his case

for resentencing.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.