Plain Error Review of Constructive Amendment Must Meet Fourth Olano Prong

US v. Banks: Banks was charged with possession with intent to distribute 50 or more grams of methamphetamine and using or carrying a firearm during that offense. However, when instructing the jury, the district court explained it could convict Banks on the drug count if he either possessed the drugs with intent to distribute them or actually distributed them. The verdict form, however, only mentioned possession with intent. Banks was convicted on both charges and sentenced him to 240 months in prison. 

On appeal, the Fourth Circuit affirmed Banks’ convictions. Banks’ main argument was that the district court’s instruction to the jury had constructively amended the charge against him, broadening the bases on which the jury could convict him. Conceding that review was for plain error, Banks argued that under the Fourth Circuit’s 1994 decision in Floresca such an error required vacation of his conviction regardless of the standard of review. The Government countered that Floresca was no longer good law in light of more recent Supreme Court decisions involving application of the Olano plain-error factors. The court agreed with the Government, concluding that although a constructive amendment was error, plain, and prejudicial, Banks still had to overcome the fourth prong, proving that not vacating his conviction would “affect the fairness, integrity, and public reputation of federal judicial proceedings.” He could not do so here, as “there was overwhelming and generally uncontroverted evidence that Banks possessed with intent to distribute over 50 grams of methamphetamine.”