Evidence and jury instruction may constructively amend indictment for unlawful possession of firearm and ammunition

INDICTMENT/SENTENCING United States v. Bishop, No. 05-3173, ___ F.3d ___ (10th Cir. Nov. 9, 2006)(Kansas). Appeal of convictions and sentence for: (1) being felon in possession of firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2); (2) witness intimidation in violation of 18 U.S.C. § 1512(b)(1); and (3) using threat of physical force to intimidate witness in violation of 18 U.S.C. § 1512(a)(2)(A) & (B)(i), (b)(1). HELD: (1) Admission of bullet as evidence coupled with jury instruction advising jury they could convict defendant for possessing bullet or handgun constituted constructive amendment of indictment where indictment generally charged defendant with possession of “any ammunition and firearm which has been shipped or transported in interstate commerce,” but later qualified that language by limiting charge to possession of specific handgun “that is, a Hi-Point 9mm pistol.” Nevertheless, error was harmless. Special verdict forms indicated that jury found defendant guilty of possession of bullet and possession of pistol, each as separate offense. (2) If difference between advisory guidelines sentencing range and actual sentence is not extreme, but sentence is still outside guidelines range, district court’s decision is not presumptively reasonable but must be supported by appropriate justification. Strength of justification must be proportional to extent of difference between advisory range and sentence imposed. Comparative difference of 37% between defendant’s sentence of 78 months and guidelines’ advisory range maximum of 57 months is significant increase requiring substantial explanation and justification from district court. Because district court carefully examined defendant’s individualized circumstances using factors set out in 18 U.S.C. § 3553 and increased sentence by linking variance to sentencing guidelines, justification was sufficient and upward departure from guidelines range was reasonable. Read the opinion here.