[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-14302

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D.C. Docket No. 8:11-cr-00012-JDW-AEP-2

UNITED STATES OF AMERICA,

 Plaintiff -Appellee,

versus

KENNETH LAMAR MADDEN,

 Defendant-Appellant.

__________________________

Appeal from the United States District Court

for the Middle District of Florida

__________________________

(August 16, 2013)

Before DUBINA, JORDAN and COX, Circuit Judges.

COX, Circuit Judge: 

The principal issue we address in this appeal is this: By what standard do we 

review a district court’s unobjected-to constructive amendment of a defendant’s 

indictment? We hold that we apply plain-error review. Having concluded that the 

district court constructively amended Count 2 of Kenneth Lamar Madden’s 

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superseding indictment and that the amendment satisfies the plain-error standard, 

we reverse Madden’s conviction on Count 2 and remand. 

I. FACTS & PROCEDURAL HISTORY

In December 2010, Madden was arrested after participating in a scheme to 

rob a drug stash house. A federal grand jury returned a superseding indictment

charging him with three counts. Count 1 charged that Madden conspired with 

others to possess with the intent to distribute cocaine in violation of 21 U.S.C. 

§ 841(a)(1) and (b)(1)(A)(ii). (R.1-57 at 1.) Count 2 charged:

[Kenneth Lamar Madden] . . . did knowingly use and carry a firearm 

during and in relation to a crime of violence and did knowingly 

possess a firearm in furtherance of . . . a drug trafficking crime . . . . 

(Id. at 2.) Count 3 charged that he possessed with the intent to distribute cocaine in 

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. (Id.) 

The case proceeded to trial. The jury returned a verdict of guilty on Counts 

1 and 2 and on the lesser-included offense of possession of cocaine on Count 3. 

(R.1-108.) The district court sentenced Madden to life imprisonment on Count 1, a 

consecutive sixty months on Count 2, and ninety days concurrent on Count 3. 

(R.1-126.) Madden appeals.

The district court’s instructions to the jury on Count 2 were somewhat 

confusing. Initially, the court correctly described the charge in Count 2 and used 

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language that mirrored the superseding indictment. The court said that Count 2

charges “that the defendant knowingly used and carried a firearm during and in 

relation to a crime of violence . . . and did knowingly possess a firearm in 

furtherance of a drug trafficking offense.” (R.7-151 at 72). A few moments later, 

however, the court used different language and charged the jury on Count 2 as 

follows: 

The superseding indictment alleges that the defendant 

knowingly carried a firearm during and in relation to a drug 

trafficking offense or possessed a firearm in furtherance of a drug 

trafficking offense. . . .

. . . It is sufficient if the government proves beyond a 

reasonable doubt that the defendant knowingly violated the law in 

either way.

(Id. at 78–79.)1

 After the court instructed the jury, the court asked Madden’s 

attorney if she objected to the instructions, and she replied that she did not. (Id. at 

91–92.)

 

1 Along with giving an instruction that deviated from Count 2’s language in the 

superseding indictment, the district court gave the jury a verdict form with language that differed 

from the indictment. The verdict form said: “As to the offense of using, carrying, or possessing a 

firearm during and in relation to or in furtherance of a drug trafficking crime . . . .” (R.1-108.)

And in its closing argument, the Government used language different from that used by the 

district court when discussing Count 2. The Government said: “Now, Count Two charges the 

defendant with carrying or possessing or aiding another in carrying or possessing a firearm in 

furtherance of a drug trafficking crime.” (R.7-151 at 26.)

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II. ISSUES ON APPEAL

We address two issues: first, whether the district court’s jury instructions 

constructively amended Count 2 of the superseding indictment, and second, if the 

court did constructively amend the indictment, whether the error is reversible error.

Madden also presents four other issues on appeal. He contends that (1) a 

fatal variance occurred on the Count 1 charge, (2) the Government presented 

insufficient evidence to prove that he conspired to possess with the intent to 

distribute as charged in Count 1, (3) he was denied a fair trial, and (4) his life 

sentence is cruel and unusual punishment. We have carefully considered these 

contentions and find them without merit. As a result, we address only the issues 

related to Madden’s contention that the district court constructively amended 

Count 2. 

III. DISCUSSION

Madden contends that the district court’s jury instructions constructively 

amended Count 2 of the superseding indictment in violation of the Fifth 

Amendment. To resolve this issue, we decide (A) whether the district court’s 

instructions constructively amended Count 2 of the superseding indictment and (B) 

if so, whether the court committed reversible error in doing so. 

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A. 

The Fifth Amendment provides that “[n]o person shall be held to answer for 

a capital, or otherwise infamous crime, unless on a presentment or indictment of a 

Grand Jury.” U.S. Const. amend. V. Under Supreme Court case law interpreting 

the Fifth Amendment, “a court cannot permit a defendant to be tried on charges 

that are not made in the indictment against him.” Stirone v. United States, 361 

U.S. 212, 217, 80 S. Ct. 270, 273 (1960). Simply put, a defendant can be 

convicted only of a crime charged in the indictment. United States v. Dortch, 696 

F.3d 1104, 1111 (11th Cir. 2012), cert. denied, 133 S. Ct. 993 (2013). 

The district court may not constructively amend the indictment. Stirone, 361

U.S. at 215–16, 80 S. Ct. at 272. 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. Keller, 916 F.2d 628, 634 (11th Cir. 1990). 

Count 2 of the superseding indictment reads: 

On or about December 16, 2010, in the Middle District of Florida, 

KENNETH LAMAR MADDEN . . . did knowingly use and carry a 

firearm during and in relation to a crime of violence and did 

knowingly possess a firearm in furtherance of . . . a drug trafficking 

crime . . . .

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(R.1-57 (emphasis added).) So, under Count 2 as charged in the superseding 

indictment, a jury could convict Madden if the jury found that he (1) knowingly 

used and carried a firearm during and in relation to a crime of violence or (2) 

knowingly possessed a firearm in furtherance of a drug trafficking crime.2

 

However, the court instructed the jury:

The superseding indictment alleges that the defendant knowingly 

carried a firearm during and in relation to a drug trafficking offense or 

possessed a firearm in furtherance of a drug trafficking offense. 

(R. 7-151 at 78 (emphasis added).)

The district court’s instructions constructively amended Count 2. The 

instructions allowed a conviction for “carry[ing] a firearm during and in relation to 

a drug trafficking offense,” when the indictment only charged Madden with 

possessing a firearm “in furtherance of . . . a drug trafficking crime” and using and 

carrying a firearm “during and in relation to a crime of violence.”3

 

2 Even though the superseding indictment charges that Madden “did knowingly use and 

carry a firearm during and in relation to a crime of violence and did knowingly possess a firearm 

in furtherance of . . . a drug trafficking crime,” (R.1-57 at 2 (emphasis added),) Madden agrees

that the Government only had to prove that Madden violated the law in one of those ways, 

(Appellant’s Br. at 21.)

3 The Government argues that Madden makes the wrong argument (that the district court 

erroneously replaced “crime of violence” with “drug trafficking offense”) on appeal, and for that 

reason, we should not consider whether the court erred in adding “during and in relation to.” 

(Appellee’s Br. at 23–24.) Regardless of how one looks at it, the court’s instruction still 

provided a basis for conviction that was not included in the indictment—carrying a firearm 

during and in relation to a drug trafficking offense. 

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Adding “during and in relation to” broadened the possible bases for 

conviction beyond what was specified in the superseding indictment. As the 

Government concedes, (Appellee’s Br. at 25–26, 32,) “in furtherance of” is 

narrower than “during and in relation to.” See United States v. Timmons, 283 F.3d 

1246, 1251–53 (11th Cir. 2002) (explaining the concepts of “in furtherance of” and 

“during and in relation to”); United States v. Ceballos-Torres, 218 F.3d 409, 413 

(5th Cir. 2000) (“There are situations where a possession would be ‘during and in 

relation to’ drug trafficking without ‘furthering or advancing’ that activity.”). This 

change broadened the possible bases for conviction beyond what is contained in 

the indictment, and as a result, the district court constructively amended the 

indictment. 

B.

Because the district court constructively amended the superseding 

indictment, we must decide whether the court’s constructive amendment is 

reversible error. To answer this question, we need to (1) decide what standard of 

review applies and (2) apply that standard to this case. 

1. 

Madden neither objected to the district court’s jury instructions nor raised 

the constructive-amendment issue before the district court. Ordinarily we review 

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issues not raised before the district court for plain error. See Fed. R. Crim. P. 

52(b). But Madden contends that a constructive amendment is a constitutional 

error that is per se reversible error, and therefore, he does not have to satisfy the 

plain-error standard. So, the issue before us is whether we review an unobjected-to 

constructive amendment for plain error or whether such an amendment always 

requires reversal.

There are conflicts in our case law on this issue. Compare Dortch, 696 F.3d 

at 1112 (applying plain-error review), with United States v. Peel, 837 F.2d 975, 

979 (11th Cir. 1988) (concluding that a constructive amendment is a per se 

reversible error). When we have conflicting case law, we follow our oldest 

precedent. See United States v. Levy, 379 F.3d 1241, 1245 (11th Cir. 2004) 

(“[W]here there is conflicting prior panel precedent, we follow the first in time.”).

Our oldest prior precedent appears to be United States v. Carroll, 582 F.2d 

942 (5th Cir. 1978).4

 In Carroll, the district court, while instructing the jury, 

deviated from the language of the indictment and included an offense that was not 

charged in the indictment. Id. at 943–44. The jury convicted him. Id. at 943. On 

 

4 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we 

adopted as binding all Fifth Circuit precedent decided before October 1, 1981.

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appeal, the defendant argued that the court’s incorrect instruction constructively 

amended the indictment in violation of the Fifth Amendment. Id.

The former Fifth Circuit noted that the defendant did not object to the 

improper instruction and reviewed the alleged error under a plain-error standard. 

Id. at 943–44. The court determined—and the government conceded—that the 

improper instruction was erroneous. Id. at 944. But the government argued that 

the error did not affect the defendant’s substantial rights because “there was no 

fundamental unfairness which would warrant . . . setting the conviction aside.” Id. 

The court rejected this argument, concluding that “there are some constitutional 

rights so basic to a fair trial that their infraction can never be treated as harmless” 

and that “[t]he right of a defendant to be tried under an indictment presented solely 

by a grand jury is one such right.” Id. at 944 (quoting Chapman v. California, 386 

U.S. 18, 23, 875 S. Ct. 824, 827-28 (1967)) (emphasis added). For that reason, the 

court reversed the defendant’s conviction. 

At first glance Carroll looks as if it governs this case. But “our prior 

precedent is no longer binding once it has been substantially undermined or 

overruled by . . . Supreme Court jurisprudence.” United States v. Gallo, 195 F.3d 

1278, 1284 (11th Cir. 1999). And Carroll was decided long before the Supreme 

Court’s opinion in United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770 (1993), 

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addressing plain-error review. For the reasons that follow, we conclude that Olano

has overruled—or at the very least, substantially undermined—Carroll to the 

extent that Carroll always requires reversal when a constructive amendment 

occurs. 

Olano “clarif[ied] the standard for ‘plain error’ review,” id. at 731, 113 S. 

Ct. at 1776, held that forfeited errors are subject to plain-error review, id. at 731, 

113 S. Ct. at 1776, and outlined a test to determine if a district court had committed 

plain error, id. at 732–37, 113 S. Ct. at 1776–79. The plain-error test has four 

prongs: there must be (1) an error (2) that is plain and (3) that has affected the 

defendant’s substantial rights; and if the first three prongs are met, then a court 

may exercise its discretion to correct the error if (4) the error “seriously affect[s] 

the fairness, integrity or public reputation of judicial proceedings.” Id. at 732, 113 

S. Ct. at 1776 (alteration in original) (quoting United States v. Young, 470 U.S. 1, 

15, 105 S. Ct. 1038, 1046 (1985)). Importantly, “a court of appeals may correct

the error . . . only if it meets these criteria.” Id. at 732, 113 S. Ct. at 1777 (first 

emphasis added). 

We have read Carroll as establishing that a constructive amendment always 

requires reversal regardless of whether the defendant objected to the amendment. 

See, e.g., Peel, 837 F.2d at 979 (concluding that “[t]here can be no doubt that 

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pursuant to Carroll the rule in the Eleventh Circuit is that a jury instruction which 

results in the constructive amendment of a grand jury indictment is reversible error 

per se” even if a defendant fails to object). In other words, under this reading of 

Carroll, if we conclude that the district court constructively amended the 

indictment, we must reverse the conviction. 

But to the extent that Carroll holds that an unobjected-to constructive 

amendment always requires reversal, Olano has abrogated that holding. Olano

teaches that our authority to correct a forfeited error is always discretionary. 507 

U.S. at 732, 113 S. Ct. at 1776 (“Rule 52(b) leaves the decision to correct the 

forfeited error within the sound discretion of the court of appeals . . . .”); id. at 735, 

113 S. Ct. at 1778 (“Rule 52(b) is permissive, not mandatory.”). Even if we 

conclude that the plain-error test is satisfied, we may correct the error, but we are 

not required to do so. Id. at 735, 113 S. Ct. at 1778; see also United States v. 

Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005) (“We have discretion to correct an 

error under the plain error standard . . . .”). 

Thus, Olano’s holding that a court of appeals always has the discretion to 

correct a forfeited error clashes with Carroll’s holding that we must always reverse 

when there is an unobjected-to constructive amendment. As a result, we conclude 

that Carroll has been undermined to the point of abrogation by Olano, and we are 

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no longer bound by Carroll. See United States v. Archer, 531 F.3d 1347, 1352 

(11th Cir. 2008) (noting that we are bound by the rule of our prior precedent 

“unless and until it is overruled or undermined to the point of abrogation by the 

Supreme Court”). 

And the Fifth Circuit has reached the same conclusion—Olano abrogated its 

precedent requiring reversal when a district court constructively amends an 

indictment. See United States v. Fletcher, 121 F.3d 187, 193 (5th Cir. 1997) 

(“Following Olano, this circuit . . . concluded that we have discretion to correct a 

[constructive amendment]—an error that, prior to Olano, would have required 

reversal per se.”). 

Because Carroll no longer binds us, we must decide what standard of review 

applies in this case. We look to Olano to answer this question. Olano tells us that 

we review a forfeited error for plain error. 507 U.S. at 732, 113 S. Ct. at 1776. 

And we can only correct that error if all four prongs of the plain-error test are met. 

Id. at 732, 113 S. Ct. at 1777 (“[A] court of appeals may correct the error . . . only 

if it meets these criteria.” (second emphasis added)). To that end, we hold that we 

may only reverse a defendant’s conviction based on an unobjected-to constructive 

amendment if the constructive amendment satisfies the Olano plain-error standard. 

That is, the amendment must (1) be an error (2) that is plain (3) that affects the 

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defendant’s substantial rights and (4) that seriously affects the fairness, integrity, or 

public reputation of judicial proceedings. Id. at 732, 113 S. Ct. at 1777. 

At least five of our sister circuits follow this approach: they do not require 

reversal when a defendant fails to object to the district court’s constructive 

amendment of an indictment, but instead, they apply Olano plain-error review. See 

United States v. Bohuchot, 625 F.3d 892, 897 (5th Cir. 2010); United States v. 

Gavin, 583 F.3d 542, 545–46 (8th Cir. 2009); United States v. Brandao, 539 F.3d 

44, 57 (1st Cir. 2008); United States v. Brown, 400 F.3d 1242, 1253–54 (10th Cir. 

2005); United States v. Remsza, 77 F.3d 1039, 1043 (7th Cir. 1996). 

Moreover, applying Olano’s plain-error review to unpreserved constructive 

amendment challenges is not novel in this circuit; in fact, it comports (for the most 

part) with our post-Olano case law on this issue. See Dortch, 696 F.3d at 1112 

(reviewing an unobjected-to constructive amendment for plain error); United States 

v. Starke, 62 F.3d 1374, 1380–81 (11th Cir. 1995) (same); United States v. Flynt, 

15 F.3d 1002, 1006 (11th Cir. 1994) (same).5

 

5 Madden cites five cases for the proposition that a constructive amendment is a per se 

reversible error. But these cases do not alter our conclusion because they involve defendants 

who objected to the district court’s constructive amendment. See United States v. Cancelliere, 

69 F.3d 1116, 1119 (11th Cir. 1995) (the court permitted a redaction of the indictment “[o]ver 

objection”); United States v. Artrip, 942 F.2d 1568, 1570 (11th Cir. 1990) (the defendant 

proposed his own jury instructions, which the court refused to give); United States v. Weissman, 

899 F.2d 1111, 1113 (11th Cir. 1990) (the district court supplemented its jury instructions “after 

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The only outlying case in our post-Olano case law is United States v. 

Williams, 527 F.3d 1235 (11th Cir. 2008). In Williams, the defendant failed to 

object to the district court’s instructions that she argued on appeal constructively 

amended her indictment. Id. at 1245–46 & n.8. Discussing the standard of review, 

we said in a footnote:

Normally, we review challenges to jury instructions not raised at trial 

for plain error, reversing only if the instructions were so clearly 

erroneous as to result in a likelihood of a grave miscarriage of justice 

or . . . seriously affect[ ] the fairness, integrity or public reputation of 

[the] judicial proceeding. Because Williams raises a constitutional 

challenge to this instruction under the Fifth Amendment’s grand jury 

requirement, however, we frame our review under the standard set 

forth in Stirone . . . . Indeed, Williams’s challenge goes to whether 

the district court, in giving those instructions, exceeded its 

jurisdiction.

Id. at 1246 n.8 (alterations in original) (citation omitted) (internal quotation marks 

omitted). The footnote does not clearly identify “the standard set forth in Stirone,” 

but insofar as that standard is that an unobjected-to constructive amendment 

always requires reversal, Olano controls for the reasons we explained above. 

Moreover, the Williams language quoted above is dicta—the court concluded that

 

entertaining . . . objections from counsel”); Stirone, 361 U.S. at 214, 80 S. Ct. at 271–72 (the 

defendant objected to the constructive amendment). Although it is not clear from the opinion, 

we can safely assume that the defendant in United States v. Behety objected to the constructive 

amendment because the opinion is quick to point out that the defendant did not object to a

different issue on appeal and then proceeds to conduct a plain-error review. 32 F.3d 503, 510 

(11th Cir. 1994).

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the district court did not constructively amend the indictment and therefore did not 

reach the issue of whether such an amendment was reversible error. Id. at 1247. 

“And dicta is not binding on anyone for any purpose.” Edwards v. Prime, Inc., 602 

F.3d 1276, 1298 (11th Cir. 2010). Williams, therefore, does not affect our holding. 

In sum, we hold that Olano has abrogated Carroll to the extent that Carroll

always requires reversal when a district court constructively amends an indictment, 

even when the defendant fails to object. In cases where the defendant fails to 

object to a constructive amendment, we apply traditional plain-error review as 

defined in Olano. 

2. 

We may reverse a conviction under plain-error review if we find that four 

prongs are met: there must be (1) an error (2) that is plain and (3) that has affected 

the defendant’s substantial rights; and if the first three prongs are satisfied, we may 

exercise discretion to correct the error if (4) the error seriously affects the fairness, 

integrity, or public reputation of judicial proceedings. Olano, 507 U.S. at 732, 113 

S. Ct. at 1776.

6

 

6 Madden did not argue that the district court committed plain error in his initial brief, 

and we generally refuse to consider arguments raised for the first time in an appellant’s reply 

brief. See United States v. Martinez, 83 F.3d 371, 377 n.6 (11th Cir. 1996). Nevertheless, we 

will consider whether the constructive amendment here amounts to plain error. The Government 

addressed the issue. Cf. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th 

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First, the district court erred when it constructively amended the indictment 

in violation of the Fifth Amendment. An error is a “[d]eviation from a legal rule.” 

Id. at 732–33, 113 S. Ct. at 1777. Our case law establishes that constructively 

amending an indictment is a departure from the legal rule that “a defendant can 

only be convicted for a crime charged in the indictment.” Keller, 916 F.2d at 633. 

Second, the error was plain. “For a plain error to have occurred, the error 

must be one that is obvious and is clear under current law.” Dortch, 696 F.3d at 

1112 (quoting United States v. Carruth, 528 F.3d 845, 846 n.1 (11th Cir. 2008)). It 

is clear that “in furtherance of” and “during and in relation to” are alternative

methods of conviction. See Timmons, 283 F.3d at 1251–53. And it is clear under 

current law that a court errs when it allows for an alternative method of conviction 

that is not included in the indictment. See United States v. Bizzard, 615 F.2d 1080, 

1082 (5th Cir. 1980) (noting that because “the defendant was charged by the court 

with an additional element not presented by the grand jury” and “the jury might 

have convicted the [defendant] on that extraneous element, the district court’s error 

is clearly reversible” (emphasis added)). 

 

Cir. 2012) (noting that the purpose of the requirement that issues be raised in an initial brief is so

the responding party has an opportunity to respond in writing to the argument). And even if the 

issue were not raised at all, we have the “power to notice a ‘plain error’ though it is not assigned 

or specified.’” Silber v. United States, 370 U.S. 717, 718, 82 S. Ct. 1287, 1288 (1962) (quoting 

United Bhd. of Carpenters & Joiners of Am. v. United States, 330 U.S. 395, 412, 67 S. Ct. 775, 

784 (1947)). 

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Third, the error affected Madden’s substantial rights. A plain error affects

the defendant’s substantial rights when the error is “prejudicial.” Olano, 507 U.S. 

at 734, 113 S. Ct. at 1778. That is, the error “affected the outcome of the district 

court proceedings.” Id. at 734, 113 S. Ct. at 1778. Here, the error prejudiced 

Madden. Having considered the evidence received at trial, Count 2 of the 

indictment, and the court’s jury instructions, we conclude that Madden may well 

have been convicted on a charge not in the indictment. In the end, because we 

cannot say “with certainty” that with the constructive amendment, Madden was 

convicted solely on the charge made in the indictment, see Stirone, 361 U.S. at 

217, 80 S. Ct. at 273, we hold that the amendment prejudiced him. 

Fourth, we find it self-evident in this case that the error seriously affects the

fairness, integrity, and public reputation of judicial proceedings. See United States 

v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc) (“[C]onvicting a defendant 

of an unindicted crime affects the fairness, integrity, and public reputation of 

judicial proceedings in a manner most serious.”). 

IV. CONCLUSION

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Accordingly, we exercise our discretion under plain-error review and reverse 

Madden’s conviction on Count 2. We affirm Madden’s other convictions. The 

case is remanded to the district court for further proceedings consistent with this 

opinion. 

AFFIRMED IN PART, REVERSED IN PART, and REMANDED. 

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