United States v. Melchor-Zaragoza

MEMORANDUM ** Aquileo Melchor-Zaragoza appeals from the district court’s order denying his 28 U.S.C. § 2255 motion challenging his jury-trial conviction and 411-month sentence. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm. Melchor-Zaragoza contends that the superseding indictment improperly joined distinct and separate offenses in the same counts, and improperly charged multiple offenses based on the same underlying conduct. He contends that these alleged errors, combined with the jury instructions, resulted in an improper constructive amendment of the indictment. However, the record belies the contention that separate offenses were charged in the same count. See United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir.1976). Further, because each count requires proof of an additional element that the others do not, the counts are not multiplicitous. See United States v. Arlt, 252 F.3d 1032, 1038-39 (9th Cir.2001) (en banc). We conclude that the district court did not constructively amend the indictment. See United *637 States v. Adamson, 291 F.3d 606, 615-16 (9th Cir.2002). Melchor-Zaragoza also contends that the superseding indictment improperly mixed elements of two distinct offenses defined under 18 U.S.C. § 924 (c). This contention is foreclosed. See United States v. Arreola, 467 F.3d 1153, 1161 (9th Cir.2006); Adamson, 291 F.3d at 615-16 . Melchor-Zaragoza’s request for appointment of counsel is denied. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.