United States v. Brian Phea, 953 F.3d 838

Phea was indicted under 18 U.S.C. § 1591(a) for prostituting a 14‑year‑old (count alleged Phea actually knew the victim was under 18).
The Government abandoned the actual‑knowledge theory at trial and proposed a jury instruction based on § 1591(c) ("reasonable opportunity to observe").
The district court instructed the jury on the § 1591(c) theory (language not in the indictment); trial counsel did not object; Government pressed that theory in closing.
The jury convicted Phea; the Fifth Circuit affirmed on direct appeal reviewing for plain error because no trial objection was made.
Phea filed a § 2255 ineffective‑assistance claim arguing trial (and appellate) counsel should have objected to the constructive amendment of the indictment.
The Fifth Circuit reversed the § 1591(a) conviction, holding trial counsel rendered ineffective assistance by failing to object to the constructive amendment and that prejudice under Strickland was shown.

Issue	Phea's Argument	Government's Argument	Held
Whether the trial court’s instructions constructively amended the indictment	Instruction substituted §1591(c) "reasonable opportunity to observe" for the indictment’s alleged actual‑knowledge element, so indictment was constructively amended	No prejudicial error at trial; earlier appeal had been reviewed for plain error and affirmed	Constructive amendment occurred because the instruction eliminated the scienter charged in the indictment
Whether trial counsel’s failure to object was constitutionally deficient	Counsel was deficient for not objecting to an obvious constructive amendment	Counsel not deficient given uncertainty of controlling precedent	Counsel was deficient: failure to object fell below objective standard of reasonableness
Whether Phea suffered Strickland prejudice	If counsel had objected, reasonable probability jury would have had doubt about actual knowledge (evidence supported that doubt)	No prejudice — conviction would stand under the facts	Prejudice shown: reasonable probability the jury would have doubted the actual‑knowledge theory; verdict undermined

Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective‑assistance test: deficiency and prejudice)
United States v. Scher, 601 F.3d 408 (5th Cir. 2010) (defines constructive amendment of an indictment)
United States v. Doucet, 994 F.2d 169 (5th Cir. 1993) (discusses constructive amendment/variance principles)
United States v. Phillips, 477 F.3d 215 (5th Cir. 2007) (jury instruction altering scienter modified an essential element)
United States v. Chambers, 408 F.3d 237 (5th Cir. 2005) (constructive amendments ordinarily reversible per se)
Garza v. Idaho, 139 S. Ct. 738 (2019) (Sixth Amendment guarantees effective assistance of counsel)
United States v. Phea, 755 F.3d 255 (5th Cir. 2014) (prior panel opinion affirming conviction on plain‑error review)