United States v. Smoote , 82 F. App'x 995 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 17, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40700
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK SMOOTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CR-186-ALL
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Derrick Smoote appeals his jury conviction for possession of
a prohibited object, marijuana, by a federal inmate in violation
of 18 U.S.C. § 1791(a)(2). Smoote argues that the evidence at
trial was insufficient to support the jury’s verdict because
there was a material variance between the date charged in the
indictment (on or about January 23, 2002) and the date that the
offense actually occurred (October 15, 2001).
*
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that this opinion should not be published and is not precedent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. 03-40700
-2-
Viewing the evidence and the inferences that may be drawn
from it in the light most favorable to the verdict, a rational
jury could have found the two dates to be reasonably near each
other. See United States v. Grapp, 653 F.2d 189, 195 (5th Cir.
1981); Russell v. United States, 429 F.2d 237, 238 (5th Cir.
1970) (explaining that proof that an offense occurred on a date
before the return of the indictment and within the statute of
limitations is sufficient to support a conviction); United States
v. Bowman, 783 F.2d 1192, 1197 (5th Cir. 1986). In any event,
Smoote cannot establish that his substantial rights were affected
by this variance. See United States v. Robinson, 974 F.2d 575,
578 (5th Cir. 1992). Any confusion regarding the date does not
alter the fact that Smoote possessed marijuana while being a
federal inmate. Therefore, this Court AFFIRMS the judgment of
the district court.
AFFIRMED.