What method a court should use to determine whether an alleged constructive amendment of the indictment affected the defendant's substantial rights on plain-error review

The other side of the split

Decisions the acknowledging court(s) named as the opposing or joined side, quoted in the acknowledging opinion's own words.

• On the other side · 5th Cir.United States v. Fletcher121 F.3d 187
• On the other side · 7th Cir.United States v. Remsza77 F.3d 1039

  “Remsza, 77 F.3d 1039 , 1044 (7th Cir.1996) ("In the context of plain error review, the amendment must constitute a mistake so serious that but for it the defendant would probably have been acquitted in order for us to reverse.") (internal quotations omitted) with United States v.” — United States v. Gonzalez Edeza, acknowledging the split

• On the other side · 4th Cir.United States v. Floresca38 F.3d 706

  “Floresca, 38 F.3d 706 , 712-13 (4th Cir.1994) (en banc) (holding that constructive amendments, because they are structural errors, affect substantial rights apart from prejudice) and United States v.” — United States v. Gonzalez Edeza, acknowledging the split

• On the other side · 3d Cir.United States v. Syme276 F.3d 131

  “Syme, 276 F.3d 131 , 154 (3d Cir.2002) (holding that constructive amendments raise a re-buttable presumption that a substantial right was affected).” — United States v. Gonzalez Edeza, acknowledging the split

• Discussed · 9th Cir.United States v. Dipentino242 F.3d 1090

  “Dipentino, 242 F.3d 1090 , 1096 (9th Cir.2001) (finding, prior to Cotton, the fourth prong satisfied without considering Johnson).” — United States v. Gonzalez Edeza, acknowledging the split

What the split turns on

Anchor precedents:

Johnson ·

Cotton

Doctrines & tests:

constructive amendment ·

plain error review ·

structural error