United States v. David Ferguson, 2012 U.S. App. LEXIS 11256

Ferguson was convicted by bench trial of knowingly possessing 14 images of child pornography and sentenced to the mandatory minimum of 10 years under 18 U.S.C. § 2252A(b)(2).
An initial indictment covered possession from about October 1, 2007 to April 10, 2008; a superseding indictment narrowed to possession on or about April 10, 2008.
FBI testified that 2,300 deleted images and 14 undeleted images were found on Ferguson’s computer; the deleted files’ dates could not be pinpointed.
The government used the 2,300 deleted images to argue intent/knowledge, and the 14 undeleted images as the substantive offense; the district court relied on deletion timing to label the 14 undeleted images as possessed on or about April 10, 2008.
PSR recommended a 10-year minimum based on a prior conviction involving sexual abuse of a minor; Ferguson objected.
On appeal, Ferguson challenged (a) constructive amendment of the indictment and (b) plain error in imposing the mandatory minimum based on PSR/police-report facts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the verdict constructively amend the indictment?	Ferguson contends possession of the 14 undeleted images after mass deletion was a different offense from what the indictment charged.	Ferguson argues the government’s theory impermissibly expanded the charged conduct beyond the superseding indictment.	No constructive amendment; indictment language allowed evidence near the charged date.
Was the minimum sentence improperly based on PSR/police reports?	The PSR and police reports incorrectly determined eligibility for the enhancement.	Evidence in Shepard documents independently supports eligibility, so error was harmless.	Plain error occurred by relying on PSR/police reports; however the sentence was ultimately affirmed based on Shepard-supported evidence.

United States v. Hynes, 467 F.3d 951 (6th Cir. 2006) (constructive amendment standard)
United States v. Chilingirian, 280 F.3d 704 (6th Cir. 2002) (definition of constructive amendment; per se prejudice)
United States v. Ford, 872 F.2d 1231 (6th Cir. 1989) (on-or-about language and timing standard)
United States v. Shepard, 544 U.S. 13 (1995) (two-step Taylor-Shepard approach for enhancements)
United States v. Wynn, 579 F.3d 567 (6th Cir. 2009) (PSR not an admissible basis for eligibility)
United States v. Anglin, 601 F.3d 523 (6th Cir. 2010) (PSR factual information not to be used for enhancement)
United States v. Bartee, 529 F.3d 357 (6th Cir. 2008) (caution against relying on PSR for factual basis)
United States v. Gibbs, 626 F.3d 344 (6th Cir. 2010) (narrowing to charged statutory subsection via Shepard documents)
United States v. Gardner, 649 F.3d 437 (6th Cir. 2011) (limitations on using charging document for elevation of offense)
United States v. McMurray, 653 F.3d 367 (6th Cir. 2011) (Alford-type pleas and reliance on elements)