United States v. Jingles, 702 F.3d 494

Jingles was convicted on multiple counts related to cocaine trafficking and conspiracy; he received a 520-year aggregate sentence plus three life terms on counts 2, 21, and 22.
On direct appeal, the court affirmed the judgment; remand occurred to delete multiplicious counts that did not affect the overall sentence.
Jingles filed a pro se 2255 motion to set aside the judgment; the district court denied it after de novo review of the magistrate judge’s findings.
The issue on appeal centers on whether counts 21-22 constructively amended the indictment by allowing verdicts based on 50 grams of cocaine base instead of 500 grams of cocaine as charged.
The prior panel’s unpublished disposition addressed the variance/constructive amendment question, holding it harmless and thus not affecting substantial rights, which the current panel considered the law of the case.
The court ultimately AFFIRMS the denial of the 2255 motion and discusses law-of-the-case applicability and the distinction between constructive amendments and variances.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counts 21–22 constructively amended the indictment.	Jingles argued the verdicts constructively amended the indictment.	The government argued no constructive amendment, or it was harmless variance.	Law-of-the-case review; constructive amendment found resolved by the prior panel; affirmed denial.
Whether the law-of-the-case doctrine bars relitigation of Jingles’s constructive amendment claim.	Jingles contends the prior ruling should not bind current collateral attack.	Law-of-the-case doctrine applies; exceptions not met.	The prior panel’s ruling is the law of the case; no manifest injustice shown to warrant relitigation.
Whether Jingles’s claim is reviewable under plain error post-Cotton.	Like Cotton, Jingles preserved nothing in district court; issue reviewed for plain error.	Plain error review applies; issue not preserved standard limits apply.	Like Cotton, plain error review applies and the claim is rejected on merits.
Whether count two conviction should be vacated due to predicate counts.	Jingles argues count two is based on counts 21–22 and should be vacated.	Not raised or argued sufficiently; collateral consequences insufficient.	Not considered on appeal; motion denied as to this theory.

Stirone v. United States, 361 U.S. 212 (1960) (indictment requirement; construct vs variance context; grand jury charge integrity)
Ex parte Bain, 121 U.S. 1 (1887) (automatic reversal rationale for indictment amendments)
United States v. Cotton, 535 U.S. 625 (2002) (constructive amendment not automatically reversible; plain error standard)
Gaither v. United States, 413 F.2d 1061 (D.C. Cir. 1969) (distinguishes amendment vs variance; historical backdrop)
United States v. Von Stoll, 726 F.2d 584 (9th Cir. 1984) (definition of indictment amendment vs variance)
United States v. Sua, 307 F.3d 1150 (9th Cir. 2002) (variance and notice considerations in proof versus charge)
United States v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997) (fatal variance concept under Fifth Amendment indictment)
United States v. Jordan, 429 F.3d 1032 (11th Cir. 2005) (law-of-the-case analysis in post-direct appeal collateral review)
Lummi Indian Tribe v. United States, 235 F.3d 443 (9th Cir. 2000) (law-of-the-case applicability and exceptions)
Odom v. United States, 455 F.2d 159 (1972) (collateral-attacks treated as same case for law-of-the-case purposes)
Jeffries v. Wood, 114 F.3d 1484 (9th Cir. 1997) (en banc discussion of law-of-the-case exceptions)