                                      ___________

                                      No. 95-3274
                                      ___________

United States of America,                   *
                                            *
              Appellee,                     *
                                            * Appeal from the United States
     v.                                     * District Court for the
                                            * Eastern District of Missouri.
Denny Shelby Herndon,                       *       [UNPUBLISHED]
                                            *
              Appellant.                    *
                                      ___________

                     Submitted:       March 5, 1996

                            Filed:    March 8, 1996
                                      ___________

Before McMILLIAM, WOLLMAN, and MURPHY, Circuit Judges.
                               ___________


PER CURIAM.


     Denny Shelby Herndon challenges the sentence imposed by the district
court1 after he pleaded guilty to possessing cocaine base (crack) with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B).
We affirm.


     Herndon's presentence report (PSR) assigned a Category II criminal
history, based on two juvenile delinquency adjudications in the St. Louis
Juvenile Court.     Herndon filed written objections, stating that he was
"only a Category I."       Herndon also contended his base offense level should
have been calculated under the less onerous Guidelines provision governing
powder cocaine.    To not do so, he maintained, would violate his due process
and equal protection rights.         The district court denied Herndon's request
to continue his sentencing until December 1995, by which time Congress




     1
     The Honorable Carol E. Jackson, United States District Judge
for the Eastern District of Missouri.
was to act on a proposed Guidelines amendment equalizing the penalties for
powder and crack cocaine.


     At    sentencing,       Herndon's   counsel    denied    that    the    juvenile
adjudications existed because he had "never received any such records" and,
based on the information he had been able to obtain, he was not convinced
that there "[was] in fact a conviction" for criminal history purposes.
After hearing the testimony of the probation officer who prepared Herndon's
PSR, the district court overruled the criminal-history objection, finding
that the information set forth in the PSR was accurate.           The district court
also overruled Herndon's offense-level objection, noting the speculative
nature of Herndon's reliance on the proposed Guidelines amendment.                The
court sentenced Herndon to 63 months imprisonment and four years supervised
release.   This appeal followed.


     It is well-recognized that "the [PSR] is not evidence and is not a
legally sufficient basis for making findings on contested issues of
material fact."    United States v. Hammer, 3 F.3d 266, 272 (8th Cir. 1993),
cert. denied, 114 S. Ct. 1121 (1994).              In resolving disputed factual
matters,   the    district    court   may   rely   on   hearsay   evidence    bearing
"`sufficient indicia of reliability to support its probable accuracy,'"
United States v. Cassidy, 6 F.3d 554, 557 (8th Cir. 1993) (quoting U.S.S.G.
§ 6A1.3(a)), including uncorroborated hearsay if the defendant has an
opportunity to rebut the evidence, United States v. Weaver, 906 F.2d 359,
360 (8th Cir. 1990) (per curiam).


     Here, the probation officer--a nineteen-year veteran--testified that
identifying information he obtained from Herndon matched the information
contained in the juvenile court records; that he had no reason to believe
the records related to anyone other than Herndon; that he recorded the
information by hand, because he was prohibited from photocopying the
records, and dictated the report from his written notes; and that the




                                         -2-
information detailed in the PSR accurately reflected the information
contained in the juvenile court records.              Herndon availed himself of the
opportunity to cross-examine the probation officer as to the preparation
of the PSR.     While Herndon denied that the juvenile court records existed,
he did not deny that the adjudications had occurred, and he admitted that
he never attempted to view the records.               Under these circumstances, we
conclude the district court acted within its discretion in determining that
the probation officer's hearsay testimony was sufficiently reliable to
support the use of the juvenile adjudications in the calculation of
Herndon's criminal history category.           See Cassidy, 6 F.3d at 557 (whether
hearsay is sufficiently reliable is fact-driven question entrusted to
district court's sound discretion); cf. United States v. Wise, 976 F.2d
393, 403-04 (8th Cir. 1992) (en banc) (concluding that probation officer's
hearsay testimony--based on information received from another government
agency and personnel in prosecutor's office--was sufficiently reliable, and
noting that record included nothing to indicate probation officer had any
reason to lie, or to distort or misrepresent facts), cert. denied, 507 U.S.
989 (1993).


     Finally,      we   reject    Herndon's     challenge     to   his    offense-level
calculation.    We conclude the district court did not abuse its discretion
in denying Herndon's continuance motion, because Herndon was speculating
that Congress would adopt the proposed amendment.               See United States v.
Ulrich,   953    F.2d   1082,    1085   (8th   Cir.   1991)   (standard    of   review).
Regardless, Herndon was not prejudiced by the denial of the motion because
Congress rejected the proposed amendment.               See id. at 1085 (denial of
continuance motion not reversible absent prejudice); see also United States
v. Lamere, 980 F.2d 506, 512 (8th Cir. 1992) (no error in not applying
proposed but unadopted change to Guidelines).


     Accordingly, the judgment is affirmed.




                                          -3-
A true copy.


     Attest:


           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                            -4-
