                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     November 30, 2004

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 02-60999
                             Summary Calendar



                       UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                   versus

                        TAVARIS MONONNETO MOORE,
                       also known as Chilli Mac,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                for Northern District of Mississippi
                     USDC No. 3:01-CR-139-ALL-B


Before JONES, BARKSDALE, and PRADO, Circuit Judges.
             *
PER CURIAM:

           Tavaris Mononneto Moore appeals his conviction for one

count of distribution in excess of fifty grams of a mixture and

substance containing cocaine base (crack cocaine).              He contends

that he was denied effective assistance of counsel due to an actual

conflict of interest.      Further, he asserts that the district court

failed to protect his constitutional right to counsel by taking




     *
            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opinion should not be published and is not precedent except under the limited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.
corrective action when the conflict of interest manifested at

trial.

           Moore fails to show that an actual conflict of interest

adversely affected his attorney’s performance.           See Cuyler v.

Sullivan, 446 U.S. 335, 348 (1980); Perillo v. Johnson, 205 F.3d

775, 798-99 (5th Cir. 2000).      Thus, his argument that the district

court failed to protect his constitutional right to counsel by

taking corrective action when the conflict of interest manifested

at trial has no merit.

           On appeal, Moore also argues that perjured testimony on

the part of Government agents tainted the jury.        Moore’s argument

has no merit because he has failed to show that the Government

agent's testimony was willfully false.            See United States v.

Blackburn, 9 F.3d 353, 357 (5th Cir. 1993).             “Conflicting or

inconsistent testimony is insufficient to establish perjury.”           See

Kutzner v. Johnson, 242 F.3d 605, 609 (2001).

           Additionally, Moore asserts that the district court erred

in failing to verify at sentencing that he and his counsel had read

and discussed the presentence report (PSR), in accordance with

Federal Rule of Criminal Procedure 32.       Because Moore has not made

a showing of prejudice, the district court did not plainly err in

failing to ask Moore whether he had read the PSR.             See United

States v. Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001).

Similarly, because Moore has failed to show that his substantial

rights   were   affected   by   the   probation   officer’s   failure   to

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personally provide him with a copy of the PSR, there was no plain

error.    Id.

            Moore    further     contends     that   the   district     court

incorrectly      applied   the    Federal    Sentencing    Guidelines   when

calculating the amount of drugs attributable to him at sentencing.

Specifically, he contends that some of the statements used by the

probation officer, pursuant to U.S.S.G. § 1B1.3, were not reliable

because they involved hearsay.              He further contends that the

statements referred to conduct occurring ten years prior to the

instant offense and had “a complete lack of temporal proximity

. . . to the offense of conviction.”

            Although Moore objected to several paragraphs of the PSR

describing his drug trafficking activity, he did not specifically

raise objections on the grounds he asserts on appeal.            Thus, this

court reviews for plain error.        See United States v. Arce, 118 F.3d

335, 343 n.8 (5th Cir. 1997).         However, this court has held that

“[q]uestions of fact that the sentencing court could have resolved

upon proper objection at sentencing can never constitute plain

error.”    Id.      Because a district court’s determination of the

quantity of drugs attributable to a defendant is a finding of fact,

see United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995), Moore

cannot show plain error.         Additionally, Moore’s argument that his

sentence must be reversed pursuant to Blakely v. Washington, 124

S. Ct. 2531 (2004) is foreclosed by this court’s decision in United



                                       3
States v. Pineiro, 377 F.3d 464, 465-66 (5th Cir. 2004), pet. for

cert. filed (July 14, 2004) (No. 04-5263).

          Lastly, because the record is not sufficiently developed

to permit direct review, we decline to address Moore’s claim that

he was denied effective assistance of counsel at sentencing.    See

United States v. Brewster, 137 F.3d 853, 859 (5th Cir. 1998).

          AFFIRMED.




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