[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-13245

Non-Argument Calendar

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D.C. Docket No. 1:18-cr-00116-TFM-MU-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

DARRELL JOHNSON, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Alabama

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(May 8, 2020)

Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:

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Darrell Johnson appeals his convictions and sentences for conspiring to 

possess with intent to distribute and manufacture methamphetamine, in violation of 

21 U.S.C. § 841(a)(1); knowingly possessing with the intent to distribute 

methamphetamine, in violation of § 841(a)(1); and felony possession of a firearm, 

in violation of 18 U.S.C. § 922(g)(1). On appeal, Johnson first argues that the 

evidence of a conspiracy introduced at trial only supported a conspiracy from 2017 

onward, and therefore materially and prejudicially varied from the conspiracy 

alleged in his superseding indictment, which alleged a conspiracy from 2012 

onward. Second, he contends that the district court’s jury instructions 

constructively amended the conspiracy charge in the superseding indictment. 

More specifically, he claims that the court instructed the jury only that it was 

unlawful to possess methamphetamine and that methamphetamine was a controlled 

substance, but did not apprise the jury of how to find the precise drug type—

“methamphetamine (actual)”—and quantity. We disagree and affirm his 

convictions and sentences. For ease of reference, we address each point in turn.

I.

Normally, we review a claim of constitutional error de novo. United States 

v. Williams, 527 F.3d 1235, 1239 (11th Cir. 2008). However, if an error is not 

preserved, we review only for plain error. United States v. Dortch, 696 F.3d 1104, 

1110-12 (11th Cir. 2012). To prevail under plain error review, the party must 

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show: (1) there was an error; (2) that was plain or obvious; (3) that affected the 

defendant’s substantial rights in that it was prejudicial and not harmless; and 

(4) that seriously affected the fairness, integrity, or public reputation of the judicial 

proceedings. United States v. Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012). 

A fundamental principle derived from the Fifth Amendment is that “a 

defendant can only be convicted for a crime charged in the indictment” because 

“[i]t would be fundamentally unfair to convict a defendant on charges of which he 

had no notice.” United States v. Keller, 916 F.2d 628, 632–33 (11th Cir. 1990). 

“When the evidence at trial or the court’s jury instructions deviate from what is 

alleged in the indictment, two distinct problems can arise—constructive 

amendment or variance.” United States v. Flynt, 15 F.3d 1002, 1005 (11th Cir. 

1994) (per curiam). 

“A variance occurs when the facts proved at trial deviate from the facts 

contained in the indictment but the essential elements of the offense are the same.” 

Keller, 916 F.2d at 634. A variance requires reversal only if the variance between 

the charged conspiracy and the evidence presented at trial is material, and the 

material variance prejudiced the defendant. See United States v. Richardson, 532 

F.3d 1279, 1284 (11th Cir. 2008). “Prejudice generally is measured in terms of 

whether the defendants were deprived of fair notice of the crimes for which they

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were being tried, and whether the spillover of the proof of other crimes prejudiced 

them.” United States v. Glinton, 154 F.3d 1245, 1252 (11th Cir. 1998). 

To determine whether there was a material variance between the indictment 

and the evidence introduced at trial, the test is whether, viewing the evidence in the 

light most favorable to the government, a reasonable trier of fact could have found 

that a single conspiracy existed beyond a reasonable doubt. Richardson, 532 F.3d 

at 1284. A jury’s conclusion that a single conspiracy existed should not be 

disturbed so long as it is supported by the evidence, and a material variance will 

exist only if there is no evidentiary foundation for the jury’s finding of a single 

conspiracy. Id. 

Here, we apply plain error review because Johnson did not argue at trial that 

the evidence varied materially and prejudicially from the conspiracy charged in the 

superseding indictment. Viewing the evidence in the light most favorable to the 

government, the evidence was sufficient to permit the jury to conclude that 

Johnson conspired to possess with the intent to distribute and manufacture 

methamphetamine as alleged in the superseding indictment. Further, Johnson was 

on fair notice of the scope of the alleged conspiracy and the charges against him. 

Accordingly, Johnson’s conspiracy conviction does not warrant reversal. See id. 

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II.

A constructive amendment occurs “when the essential elements of the 

offense contained in the indictment are altered to broaden the possible bases for 

conviction beyond what is contained in the indictment.” United States v. Dennis,

237 F.3d 1295, 1299 (11th Cir. 2001). Unlike a variance, a constructive 

amendment to an indictment constitutes per se reversable error. Flynt, 15 F.3d 

at 1005. However, we need not address whether a constructive amendment 

amounts to a per se reversible error when the defendant fails to object at trial in 

cases where, even if we assume that the district court erred, the error was not plain. 

Dortch, 696 F.3d at 1112. Moreover, we will not reverse a conviction unless we

find that “the issues of law were presented inaccurately, the [jury] charge included 

crimes not contained in the indictment, or the charge improperly guided the jury in 

such a substantial way as to violate due process.” United States v. Weissman, 899 

F.2d 1111, 1114 (11th Cir. 1999). We have stated:

When the instructions, taken together, accurately express the law 

applicable to the case without confusing or prejudicing the jury, there 

is no reason for reversal even though isolated clauses may, in fact, be 

confusing, technically imperfect, or otherwise subject to criticism. An 

erroneous instruction does not require reversal unless the reviewing 

court is left with a substantial and ineradicable doubt as to whether the 

jury was properly guided in its deliberations.

Id. at 1114 n.1.

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A jury instruction that allows the jury to consider an element of the offense 

not listed in the indictment is an impermissible, constructive amendment of the 

indictment. See Stirone v. United States, 361 U.S. 212, 218–19 (1960). In

determining whether an indictment was constructively amended, we look at

whether the prosecutor’s actions or the court’s instructions, “viewed in context,”

literally or effectively expanded the indictment. United States v. Behety, 32 F.3d

503, 508–09 (11th Cir. 1994). In doing so, we are concerned with the danger that a 

“defendant may have been convicted on a ground not alleged by the grand jury’s 

indictment.” Id. at 509. Slightly different wording in a jury instruction does not 

amount to constructive amendment where it correctly states the law and tracks the 

pattern instructions. See United States v. Elbeblawy, 899 F.3d 925, 939 (11th Cir. 

2018), cert. denied, 139 S. Ct. 1322 (2019).

It is unlawful for a person to manufacture, distribute, or possess with intent 

to do the same, a controlled substance. 21 U.S.C. § 841(a)(1). A person who 

violates that subsection will receive a mandatory minimum term of 10 years’ 

imprisonment if the violation involved “50 grams or more of methamphetamine, its 

salts, isomers, and salts of its isomers or 500 grams or more of a mixture or 

substance containing a detectable amount of methamphetamine, its salts, isomers, 

or salts of its isomers.” Id. § 841(b)(1)(A)(viii). For controlled substance offenses, 

“[t]he nature of the controlled substance neither constitutes an element of the 

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offense nor broadens the bases for conviction, but is relevant only for sentencing

purposes.” United States v. Rutherford, 175 F.3d 899, 906 (11th Cir. 1999). 

Under plain error review, the district court did not constructively amend the 

indictment through its jury instructions because, viewed in the context of the trial as 

a whole, the court’s slightly different wording did not allow the jury to consider an 

element of the offense not contained in the indictment. See Behety, 32 F.3d at 508–

09; Elbeblawy, 899 F.3d at 939. Accordingly, we affirm in this respect.

AFFIRMED.

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