United States v. Taylor ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20501
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ANTHONY TAYLOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-553-2
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January 23, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
John Anthony Taylor has appealed his convictions for bank
robbery and aiding and abetting; using, carrying, and brandishing
a firearm during a crime of violence; armed bank robbery; and
using and carrying a firearm during a crime of violence.
Taylor contends that his convictions should be reversed because
the district court constructively amended the superseding
indictment by submitting jury instructions that permitted the
jury to convict him for an offense not charged in the indictment.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 00-20501
-2-
Because he did not object to the district court's special
instructions, Taylor concedes that this issue should be reviewed
for plain error. See United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc); see also United States v.
Olano, 507 U.S. 725, 730-35 (1993). Although the district
court's instruction arguably broadened the superseding
indictment, we decline to exercise our discretion to correct the
error. See United States v. Fletcher, 121 F.3d 187, 192-93 (5th
Cir. 1997); United States v. Reyes, 102 F.3d 1361, 1364-66 (5th
Cir. 1996).
AFFIRMED.