Prior Sexual Assault Evidence, Constructive Amendment, and Harmless Guideline Error in High-Offense-Level Sentencings: Commentary on United States v. Copeland

Note: The decision in United States v. Copeland, No. 24‑2219 (2d Cir. Dec. 19, 2025), is a summary order. Under Federal Rule of Appellate Procedure 32.1 and Second Circuit Local Rule 32.1.1, it may be cited but does not have precedential effect. This commentary analyzes the court’s reasoning and its practical implications; it does not describe binding precedent.

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I. Introduction

A. Procedural Posture and Court

The case is an appeal to the United States Court of Appeals for the Second Circuit from a judgment of the United States District Court for the Southern District of New York (Judge Kenneth M. Karas). On August 20, 2024, the district court entered judgment following a jury conviction and imposed a within‑Guidelines life sentence on the defendant, Vernon E. Copeland III. On December 19, 2025, a Second Circuit panel (Judges Sack, Robinson, and Pérez) affirmed in a non‑precedential summary order.

B. Parties

• Appellee: United States of America
• Defendant‑Appellant: Vernon E. Copeland III

The government was represented by Assistant United States Attorneys Timothy Ly and Michael D. Maimin for the U.S. Attorney for the Southern District of New York. Copeland was represented by defense counsel Nicholas J. Pinto.

C. Factual Overview (High Level)

Copeland was convicted of three federal offenses arising from repeated sexual assaults of his minor daughter over several years (ages nine to thirteen). The facts are not fully recited in the order (the court expressly “assumes familiarity”), but the decision makes clear that:

• Copeland repeatedly raped his daughter over a period of years;
• He moved her across state lines in connection with the abuse; and
• He used the internet to express sexual intent toward her while she was with her mother.

In addition to the charged conduct involving his daughter, the government introduced evidence under Federal Rule of Evidence 413 that Copeland had previously sexually assaulted three other minor girls—two in 2004 and one in 2010—with DNA evidence corroborating those earlier assaults.

D. Issues on Appeal

Copeland raised four principal challenges:

1. Evidentiary Issue: Whether the district court erred in admitting evidence of other sexual assaults of minor victims under Federal Rule of Evidence 413, in light of Federal Rule of Evidence 403’s balancing test (probative value vs. unfair prejudice).
2. Indictment Issue: Whether the volume and manner of the Rule 413 evidence, combined with the court’s instructions, caused a constructive amendment of the indictment or a variance from it.
3. Sufficiency of the Evidence: Whether the trial evidence was sufficient to support the three convictions beyond a reasonable doubt.
4. Sentencing: Whether the life sentence was (a) procedurally defective because of allegedly erroneous Guidelines enhancements, and (b) substantively unreasonable, particularly in light of national sentencing data, Copeland’s mental health, and his conditions of confinement.

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II. Summary of the Opinion

The Second Circuit affirmed Copeland’s convictions and his life sentence in full.

• Rule 413 Evidence: The court held that the district judge did not abuse his discretion in admitting evidence of Copeland’s prior sexual assaults of three other minors. The court emphasized Congress’s intent that Rule 413 evidence is presumptively relevant in sexual assault prosecutions and found that the probative value was not substantially outweighed by unfair prejudice under Rule 403.
• No Constructive Amendment or Variance: Reviewing for plain error (because the argument was not raised below), the panel rejected Copeland’s contention that the extensive other‑acts evidence and jury instructions effectively altered the charges. The jury was properly instructed that prior acts could not substitute for proof of the charged crimes, and the proof did not add or change elements of the offenses or materially differ from the indictment.
• Sufficiency of the Evidence: The court held the evidence easily sufficient. Applying the standard of viewing the evidence in the light most favorable to the government and deferring to the jury’s credibility determinations, the panel concluded that a rational trier of fact could find each element of each offense beyond a reasonable doubt, principally on the testimony of the victim and supporting circumstances.
• Sentencing:
  • Procedural Reasonableness: Even assuming arguendo that certain Guidelines enhancements (a four‑level enhancement under § 2A3.1(b)(1) and a two‑level enhancement under § 3C1.1) may have been erroneous, any error was harmless because Copeland’s total offense level, even without them, exceeded 43. Under the Guidelines, all offense levels above 43 are treated as 43, so the Guidelines range and sentence would not have changed.
  • Substantive Reasonableness: The life sentence, within the Guidelines range, fell well within the range of permissible decisions and was not substantively unreasonable. The panel emphasized the highly deferential standard of review for sentencing, rejected reliance on bare national average data as proof of unwarranted disparity, and upheld the district court’s weighing of § 3553(a) factors, including the extremely serious and prolonged nature of the offense.

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III. Analysis

A. Precedents and Authorities Cited

1. Federal Rule of Evidence 413 and Rule 403

• United States v. Schaffer, 851 F.3d 166 (2d Cir. 2017)
  The Copeland panel quotes Schaffer for the proposition that, in enacting Rule 413, Congress intended to create a presumption that evidence of prior sexual assaults is relevant and probative in sexual assault prosecutions. Schaffer also provides the formulation that such evidence may still be excluded under Rule 403 if its probative value is substantially outweighed by unfair prejudice.
  
  In Copeland, the court relies on Schaffer in two distinct ways:
  • To reinforce that Rule 413 evidence starts from a position of presumed admissibility (subject to Rule 403); and
  • To support the view that evidence of prior sexual assaults was “no more inflammatory” than the charged sexual abuse, weakening any argument of “unfair” prejudice.
• United States v. Morgan, 786 F.3d 227 (2d Cir. 2015)
  Cited for the standard of review: evidentiary rulings (including Rule 403 decisions) are reviewed for abuse of discretion, a strongly deferential standard. The appellate court does not substitute its own judgment for the trial judge’s unless the decision falls outside the range of permissible choices.
• United States v. Larson, 112 F.3d 600 (2d Cir. 1997)
  The court cites Larson for the proposition that the passage of time between prior sexual assaults and the charged offense does not automatically render the evidence inadmissible. This undercuts Copeland’s argument that the older 2004 assaults were too remote in time to be probative.

2. Constructive Amendment and Variance

• United States v. Bastian, 770 F.3d 212 (2d Cir. 2014)
  Cited for the review standard: because Copeland did not object at trial that the indictment had been constructively amended or that there was a variance, the court reviewed those claims only for plain error.
• United States v. Khalupsky, 5 F.4th 279 (2d Cir. 2021)
  Provides the key doctrinal definitions:
  • A constructive amendment occurs when the proof or jury instructions effectively add an element or modify an essential element of the offense, such that the defendant might be convicted of a crime different from that charged in the indictment.
  • A variance arises where the proof at trial materially differs from what was alleged, but without altering the essential elements of the offense.
  The Copeland panel cites Khalupsky’s formulations directly, applying them to find that neither phenomenon occurred.

3. Sufficiency of the Evidence

• United States v. Bramer, 956 F.3d 91 (2d Cir. 2020)
  Cited for the general standard governing sufficiency challenges: whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” This is an objective but highly deferential test.
• United States v. Laurent, 33 F.4th 63 (2d Cir. 2022)
  Cited for the principle that, in sufficiency review, the court:
  • Views evidence in the light most favorable to the prosecution;
  • Credits all reasonable inferences in the government’s favor; and
  • Defers to the jury’s credibility determinations and its weighing of the evidence.
  This is crucial because Copeland’s sufficiency argument largely attacked the credibility of his daughter versus defense witnesses.

4. Sentencing Review and the Guidelines

• United States v. Davis, 82 F.4th 190 (2d Cir. 2023)
  Davis is cited for the proposition that appellate courts apply a “particularly deferential form of abuse-of-discretion review” to sentencing decisions. The panel also quotes Davis for the idea that appellate review of substantive reasonableness is not an opportunity for the appellate court to substitute its judgment for that of the sentencing judge.
• United States v. Gates, 84 F.4th 496 (2d Cir. 2023), and
  United States v. Brown, 843 F.3d 74 (2d Cir. 2016)
  Both cases support the conclusion that a Guidelines error is harmless where it “could have had no impact” on the defendant’s Guidelines range. The panel applies this principle to the calculation of Copeland’s offense level, which remained above the maximum level (43) even without the disputed enhancements.
• United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc)
  Cavera is the Second Circuit’s seminal en banc decision on sentencing review. Here, it is cited for the standard that appellate courts will set aside a sentence as substantively unreasonable only in “exceptional cases” where the sentence cannot be located within the range of permissible decisions.
• United States v. Irving, 554 F.3d 64 (2d Cir. 2009)
  The court uses Irving to reject Copeland’s argument based on national sentencing averages. Irving holds that bare “averages of sentences” are unreliable to show unwarranted disparity because they omit case‑specific details—such as aggravating and mitigating factors—that sentencing judges must consider under 18 U.S.C. § 3553(a).
• United States v. Bleau, 930 F.3d 35 (2d Cir. 2019)
  Bleau is invoked to reiterate that the weight assigned to any sentencing factor is “firmly committed” to the sentencing judge’s discretion and “beyond [appellate] review,” provided the ultimate sentence is reasonable. This directly answers Copeland’s disagreement with how the district court balanced his mental health history and conditions of confinement against other factors.

5. Guidelines Provisions and Statutes

• U.S.S.G. Ch. 5, Pt. A, Note 2
  This note provides that any offense level above 43 is treated as level 43 for purposes of the Sentencing Table. The court relies on this to find harmless error: Copeland’s total offense level was 47 even without certain enhancements, and 47 collapses to 43 under the note, leaving the Guidelines range unchanged.
• U.S.S.G. § 2A3.1(b)(1)
  A four‑level enhancement applicable in aggravated sexual abuse cases (the details of subsection (b)(1) are not elaborated in the order, but they relate to certain aggravating circumstances such as use of force or threats). Copeland challenged its application, but the court sidestepped the merits based on harmlessness.
• U.S.S.G. § 3C1.1
  A two‑level enhancement for obstruction of justice (e.g., perjury, destruction of evidence, threats, or other conduct impairing the investigation or prosecution). Again, even if its application were erroneous, the offense level would still exceed 43; thus, harmless.
• 18 U.S.C. § 3553(a)
  The statute sets out the factors a sentencing court must consider, such as:
  • the nature and circumstances of the offense and the history and characteristics of the defendant;
  • the need for the sentence to reflect the seriousness of the offense, provide just punishment, afford adequate deterrence, and protect the public;
  • the need to avoid unwarranted sentence disparities;
  • and more.
  The panel references § 3553(a) in noting that the district court appropriately weighed the seriousness and duration of the abuse and the parental relationship, which outweighed mitigating considerations.

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B. The Court’s Legal Reasoning

1. Admissibility of Prior Sexual Assaults (FRE 413 and 403)

The key evidentiary question was whether admitting evidence that Copeland sexually assaulted three other minors—in 2004 and 2010—was permissible under the combined framework of:

• Rule 413: allowing “evidence that the defendant committed any other sexual assault” in sexual assault prosecutions; and
• Rule 403: permitting exclusion of otherwise admissible evidence if its probative value is substantially outweighed by a danger of unfair prejudice.

The district court allowed both victim testimony and DNA evidence linking Copeland to semen recovered from the victims’ clothing. Copeland argued on appeal that:

• The significant temporal gap (especially the 2004 assaults) reduced probative value; and
• The emotional, inflammatory nature of multiple uncharged sexual assaults created extreme unfair prejudice that overwhelmed any probative value.

The Second Circuit rejected these claims, proceeding step by step:

1. Presumption of Relevance under Rule 413.
   Drawing on Schaffer, the panel emphasized that Congress intended Rule 413 to create a presumption of admissibility for prior sexual assaults in a sexual assault prosecution. This is a critical departure from ordinary character‑evidence rules; Congress made the policy judgment that prior sexual misconduct is particularly informative of propensity and credibility in sexual‑offense cases.
2. Time Gap Not Dispositive.
   The court cited Larson to affirm that the mere passage of time between the earlier assaults (2004, 2010) and the charged conduct does not, by itself, render such evidence inadmissible. Temporal remoteness is a factor in the Rule 403 balancing but not a bar.
3. Pattern of Conduct and Similarity.
   The panel accepted the district court’s assessment that, even though not all prior assaults involved the same type of close, parental‑like relationship, all of them supported the inference of a “longer standing pattern of forced sexual contact with minor female victims.”
   
   In other words:
   • They all involved minor female victims;
   • They all involved forced or nonconsensual sexual acts; and
   • They tended to show a continuing propensity to sexually assault minors, which Rule 413 expressly allows the jury to consider.
4. “No More Inflammatory” Than the Charged Conduct.
   Relying again on Schaffer, the panel endorsed the district court’s view that the prior assaults were “no more inflammatory” than the charged offenses themselves. When uncharged misconduct is no worse—indeed, no more emotionally shocking—than the charged crime, the argument that it will cause “unfair” prejudice is considerably weakened. The idea is that the jury is already confronted with extremely disturbing allegations (repeated rapes of a child by her father); similar prior assaults do not introduce a qualitatively different kind of inflammatory material.
5. No Abuse of Discretion.
   Applying the deferred abuse‑of‑discretion standard, the Second Circuit essentially concluded that the district court was within the broad “ballpark” of permissible evidentiary balancing. Even if a different judge might have decided differently, that does not make the ruling reversible.

This portion of the order illustrates how strongly Second Circuit panels (even in non‑precedential orders) adhere to the Schaffer line of cases. Rule 413 evidence, when tied to a demonstrable pattern of sexual abuse, is hard to exclude on Rule 403 grounds absent substantially more inflammatory or tangential content.

2. No Constructive Amendment or Variance

Copeland further argued that, taken together, the substantial volume of prior‑acts evidence and the court’s instructions to the jury effectively expanded the scope of the crimes being tried—either as a constructive amendment or a variance from the indictment.

Two elements drive the court’s rejection of this claim:

1. Scope of the Indictment vs. Scope of Proof.
   The indictment charged three specific crimes involving Copeland’s daughter—not the older offenses against other minors. The panel emphasizes that:
   • Only those three charges were submitted to the jury for decision; and
   • There was no alteration or addition of elements in the jury instructions.
   Under Khalupsky, a constructive amendment requires that the government’s proof or the instructions effectively change the elements, either by adding a new basis for conviction or by modifying an essential element. That did not happen here.
2. Limiting Instruction and Role of Prior‑Acts Evidence.
   The district court delivered a limiting instruction that explicitly told jurors: they may not use evidence of similar acts as a substitute for proof that Copeland committed the crimes charged.
   
   The Second Circuit treats this instruction as crucial. It clarifies that:
   • The prior assaults may be used for allowable purposes (propensity under Rule 413, credibility, pattern); but
   • They cannot serve as stand‑alone proof of guilt on the indicted charges.
   This undermines any claim that the jury was invited to convict based on “other bad acts” instead of the charged conduct.
3. Evidence Did Not “Far Outweigh” the Case‑in‑Chief.
   Copeland argued that the amount of prior‑acts evidence overwhelmed the evidence directly tied to the charged crimes. The panel notes that the record does not support the notion that the Rule 413 evidence “far outweighed” the case‑in‑chief. The core of the trial still concerned the repeated abuse of his daughter.
4. No Plain Error.
   Because Copeland did not object on this ground at trial, the panel applied plain‑error review. Even if there had been some arguable confusion, it would not have met the heightened threshold of plain error:
   • error;
   • that is plain (clear or obvious);
   • that affects substantial rights; and
   • that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
   The panel found no error at all, let alone plain error.

Taken together, this reasoning signals that the Second Circuit is comfortable allowing substantial prior sexual assault evidence in child‑sex prosecutions, so long as the district court:

• clearly confines such evidence to a proper evidentiary role (e.g., Rule 413 propensity plus pattern); and
• gives a careful limiting instruction that the jury cannot convict solely on prior bad acts.

3. Sufficiency of the Evidence

Copeland’s sufficiency challenge rested largely on a request that the appellate court credit defense witnesses and discredit his daughter’s testimony. The Second Circuit’s response is straightforward and doctrinally orthodox:

1. Standard of Review: “Any Rational Trier of Fact.”
   Citing Bramer and Laurent, the panel repeats that sufficiency review is not a re‑trial. The question is whether, viewing the evidence most favorably to the government and deferring to the jury on credibility and weight, any rational juror could have found the elements beyond a reasonable doubt.
2. Credibility Determinations Are for the Jury.
   Because Copeland’s arguments boil down to “believe my witnesses, not the government’s,” they are almost doomed from the outset under this standard. The panel expressly rejects the invitation to second‑guess the jury’s credibility assessments.
3. Evidence Supporting the Convictions.
   The court points to key evidence:
   • The daughter’s detailed testimony that he raped her repeatedly between ages nine and thirteen;
   • Evidence that he transported her across state lines in connection with the abuse; and
   • Evidence that he used the internet to communicate sexual intent while she was at her mother’s house.
   This testimony, coupled with corroborating circumstances, was plainly sufficient for a rational jury to convict.

This section of the order underscores the high bar defendants face in trying to overturn jury verdicts based on witness credibility or alternative versions of events.

4. Sentencing: Procedural and Substantive Reasonableness

a. Procedural Reasonableness and Harmless Guideline Error

Copeland argued that the district court incorrectly applied:

• a four‑level enhancement under U.S.S.G. § 2A3.1(b)(1); and
• a two‑level obstruction enhancement under U.S.S.G. § 3C1.1.

The Second Circuit chose an efficient path: it declined to decide whether the enhancements were correct, because it found any potential error to be harmless.

The reasoning is purely Guidelines‑mechanical:

1. Offense Level Calculation.
   Even if the court stripped out the 4‑ and 2‑level enhancements (a total of six levels), Copeland’s offense level was still 47.
2. Guidelines Cap at Level 43.
   Under U.S.S.G. Ch. 5, Pt. A, Note 2, any offense level above 43 is treated as level 43 for the purposes of using the Sentencing Table. There is no higher level.
3. No Effect on Guidelines Range.
   A total offense level of 47 and one of 43 both map to the same Guidelines recommendation (life imprisonment, given typical high criminal history category in such cases). As Gates and Brown hold, if the alleged error “could have had no impact” on the Guidelines range, it is harmless as a matter of law.

This practice is consistent with a broader appellate trend: where a defendant’s offense level far exceeds 43, courts often avoid complex Guidelines disputes by holding any such claimed error harmless, so long as the sentence imposed fits comfortably within the unaffected range.

b. Substantive Reasonableness: Life Sentence Within Guidelines

Copeland also challenged the sentence as substantively unreasonable, relying mainly on:

• National sentencing data allegedly showing a lower median sentence (360 months) for similarly calculated offenders; and
• Mitigating factors such as his mental health issues and allegedly harsh conditions of confinement at the Metropolitan Detention Center.

The court’s analysis rests on three pillars:

1. Highly Deferential Review.
   Citing Cavera and Davis, the panel emphasizes that substantive reasonableness review is “particularly deferential”. The appellate court will overturn a sentence only in exceptional cases where the sentence cannot be located within the permissible range of choices. It will not redo the sentencing calculus.
2. National Averages Insufficient to Show Unwarranted Disparity.
   The court dismisses Copeland’s reliance on the national median of 360 months for seventeen similarly situated offenders. Drawing on Irving, it reiterates that such “averages” are:
   • Based on small sample sizes;
   • Stripped of individualized details; and therefore
   • “Unreliable to determine unwarranted disparity.”
   The district court rightly focused on case‑specific factors that national data cannot capture, such as:
   • the parental relationship between Copeland and his victim;
   • the prolonged nature and frequency of the abuse; and
   • the severe psychological harm and breach of trust inherent in a parent’s sexual abuse of a child.
3. Weight of § 3553(a) Factors Is for the District Court.
   Copeland argued that the district court insufficiently considered his mental health and conditions at the jail. The Second Circuit responds by quoting Bleau: the weight to be afforded any factor lies firmly with the sentencing judge and is beyond appellate review, as long as the outcome is reasonable.
   
   In this case, the court found it entirely reasonable for the district judge to give heavier weight to:
   • the nature and circumstances of the offense;
   • the need to protect the public; and
   • the need for just punishment and deterrence,
   than to the mitigating considerations advanced by the defense. A life sentence within the Guidelines for repeated, long‑term sexual abuse of one’s own child fits comfortably within the “range of permissible decisions.”

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C. Impact and Practical Significance

While Copeland is a summary order and thus not binding precedent, it is still instructive in several ways.

1. Reinforcement of Rule 413’s Broad Admissibility

The order reinforces that in the Second Circuit:

• Rule 413 evidence of prior sexual assaults of minors will generally be admissible in child‑sex prosecutions, even if:
  • the prior acts are temporally remote (e.g., a decade or more before the charge); or
  • the victims are not in an identical relationship to the defendant (e.g., non‑familial minors).
• Defense arguments under Rule 403 must overcome the presumption of relevance by showing prejudice that is not only substantial but also unfair, and that meaningfully exceeds the inherent prejudice present in the charged conduct itself.

This has clear implications for prosecutors, defense counsel, and trial judges:

• Prosecutors can feel relatively secure in offering prior sexual assault evidence (especially if corroborated by forensic proof), anticipating that appellate courts will uphold district courts that admit such evidence with proper limiting instructions.
• Defense counsel must be prepared to litigate these issues early and thoroughly, with a focus on:
  • differentiating prior acts from the charged crime (e.g., in terms of type of conduct, victim profile, or setting); and
  • proposing specific, narrow limiting instructions to minimize prejudice.
• Trial judges are reminded to make a clear Rule 403 record and to use explicit limiting instructions, which play a key role in insulating their rulings from appellate reversal.

2. Constructive Amendment and Variance Claims in the Context of Other‑Acts Evidence

Copeland illustrates that:

• Even a substantial volume of uncharged misconduct evidence does not automatically create a constructive amendment or variance;
• What matters is whether:
  • the jury is asked to decide only the crimes actually charged in the indictment; and
  • the instructions explicitly limit the use of other‑acts evidence.
• Failure to object at trial forces the defendant into the narrow channel of plain error review, which is exceptionally hard to satisfy.

3. Appellate Handling of “Super‑High” Offense Levels

The decision underscores a recurring theme in federal sentencing law: when a defendant’s total offense level is well above 43:

• Many Guidelines disputes can be deemed harmless, because the Sentencing Table caps offense levels at 43; and
• Appellate courts may avoid resolving complex enhancement questions where the outcome would not affect the advisory range.

This has practical effects:

• Defendants with extremely aggravated conduct and correspondingly high offense levels may have limited practical benefit from litigating certain enhancements on appeal.
• District courts still must correctly calculate the Guidelines, but where the final offense level remains above 43 even after subtracting disputed points, appellate courts are inclined to accept any possible error as harmless.

4. Limits of Sentencing Disparity and Mitigation Arguments

Copeland also signals continued skepticism toward:

• Overreliance on nationwide sentencing averages without detailed contextualization; and
• Efforts to compel appellate re‑balancing of § 3553(a) factors such as mental health or jail conditions.

The message is:

• Citing a national median statistic does not, by itself, show an “unwarranted” disparity under § 3553(a)(6); judges must still individualize the sentence, and those individualized judgments are entitled to deference.
• Arguments that the judge undervalued certain mitigating factors typically amount to disagreements with the weighing of § 3553(a) factors—an area appellate courts largely treat as off‑limits, absent an extreme or irrational outcome.

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IV. Complex Concepts Simplified

1. Federal Rule of Evidence 413

A special evidence rule for sexual assault cases. It allows the prosecution to introduce evidence that the defendant has committed other sexual assaults—even if those assaults are not charged in the current case. Unlike the general ban on “propensity” evidence, Rule 413 expressly allows juries to infer from prior sexual assaults that the defendant may have committed the charged sexual assault.

2. Federal Rule of Evidence 403

A general balancing rule. Even if evidence is relevant and otherwise admissible, the court can exclude it if its probative value (how much it helps prove an issue) is substantially outweighed by the danger of:

• unfair prejudice (e.g., causing the jury to decide based on emotion rather than reason),
• confusing the issues,
• misleading the jury,
• undue delay, or
• waste of time.

In sexual assault cases, Rule 413 tilts the scales toward admissibility, but Rule 403 is still a final check against unusually prejudicial evidence.

3. Constructive Amendment of an Indictment

The Constitution requires that a defendant be tried only for the crimes charged by a grand jury in an indictment. A constructive amendment happens when, even though the indictment text is unchanged, the government’s proof or the judge’s jury instructions effectively:

• add a new element, or
• change an existing element,

so that the jury might convict for a crime different from the one actually charged. This is generally considered a serious constitutional error.

4. Variance

A variance occurs when the evidence at trial differs from the allegations in the indictment, but without changing the legal elements of the offense. Not all variances are reversible; courts ask whether the variance prejudiced the defendant’s substantial rights (e.g., by surprising the defense or impairing the ability to prepare a defense).

5. Plain Error Review

When a party does not object to an issue at trial, the appellate court reviews only for plain error:

1. There must be an error;
2. The error must be “plain” (clear or obvious under current law);
3. The error must affect the defendant’s substantial rights (usually, affect the outcome); and
4. The error must seriously affect the fairness, integrity, or public reputation of judicial proceedings.

This is a very high bar, making unpreserved claims difficult to win.

6. Harmless Error in Sentencing

Not every guideline miscalculation requires resentencing. If an error could not have affected the Guidelines range or the ultimate sentence, it is deemed harmless and does not justify reversal. In Copeland, any error in offense‑level enhancements was harmless because his offense level remained above 43, and the Guidelines treat all levels above 43 the same.

7. Procedural vs. Substantive Reasonableness (Sentencing)

Federal appellate courts review sentences for two types of reasonableness:

• Procedural reasonableness: Did the court correctly calculate the Guidelines, treat them as advisory, consider the § 3553(a) factors, and adequately explain the sentence?
• Substantive reasonableness: Is the length of the sentence reasonable, in light of the totality of the circumstances and § 3553(a)? Only extreme or outlier sentences are overturned as substantively unreasonable.

8. U.S.S.G. Offense Level and the 43‑Level Cap

Under the U.S. Sentencing Guidelines, each offense has a “base offense level” that can be adjusted upward or downward based on aggravating and mitigating factors. The final “total offense level,” combined with a criminal history category, yields an advisory sentencing range.

However, the Sentencing Table only goes up to level 43. Note 2 to Chapter 5, Part A states that any offense level above 43 is treated as level 43. So, even if the guidelines calculation theoretically reaches 47 or 50, the advisory range is determined as if it were 43.

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V. Conclusion

United States v. Copeland, though a non‑precedential summary order, offers a clear window into current Second Circuit thinking on several recurring issues in child‑sexual‑abuse prosecutions and high‑end sentencing:

• It underscores the robust admissibility of prior sexual assault evidence under Rule 413, subject to a relatively forgiving Rule 403 review, especially where prior acts corroborated by forensic evidence demonstrate a pattern with minor victims.
• It makes clear that introducing extensive Rule 413 evidence—accompanied by proper limiting instructions—does not, by itself, create a constructive amendment or variance.
• It reaffirms the high deference federal appellate courts owe to jury verdicts on sufficiency of the evidence, especially regarding credibility determinations in cases involving child victims.
• It exemplifies the use of harmless error doctrine in sentencing when a defendant’s offense level is so high that potential enhancements do not change the Guidelines range.
• It reiterates that arguments based on national sentencing averages and disagreements with the sentencing judge’s weighing of § 3553(a) factors rarely suffice to demonstrate substantive unreasonableness of a within‑Guidelines sentence, particularly in extremely serious, prolonged, and trust‑violating offenses like the sexual abuse of one’s own child.

In the broader legal landscape, Copeland does not create new binding doctrine but illustrates how existing Second Circuit precedents—especially Schaffer, Cavera, Irving, Bleau, and the harmless‑error line (Gates, Brown)—are being applied in contemporary, highly aggravated child‑sexual‑abuse cases. For practitioners and scholars, it highlights both the opportunities and limits of challenging prior‑acts evidence and severe sentences on appeal in this context.

Disclaimer: This commentary is for informational and analytical purposes only and does not constitute legal advice.