                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-3257
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of South Dakota.
Bud Theus, III,                           *
                                          * [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                               Submitted: May 16, 2007
                                   Filed: August 6, 2007
                                   ___________

Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
                          ___________

PER CURIAM.

       A jury found Bud Theus, III guilty of conspiring to possess with intent to
distribute five kilograms or more of a mixture and substance containing cocaine, in
violation of 21 U.S.C. § 841(a)(1) and 846. Theus argues that the evidence was
insufficient to convict him and that the district court1 erred by failing to recognize that
a variance between the conspiracy for which Theus was convicted and the one alleged
in the indictment affected his substantial rights. Having considered the briefs, the
record, and the district court’s thorough memorandum opinion, we conclude that even

      1
        The Honorable Lawrence L. Piersol, United States District Judge for the
District of South Dakota.
if there was a variance, Theus’s substantial rights were not affected and that sufficient
evidence supports his conviction. Accordingly, Theus’s arguments lack merit and do
not warrant further discussion.

      The judgment is affirmed. See 8th Cir. R. 47B.
                      ______________________________




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