                                                       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.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 1:02-CR-186-ALL
                       --------------------

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that this opinion should not be published and is not precedent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.
