               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 97-50246
                         Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

LUIS RAUL TORRES-JAUREQUI,

                                         Defendant-Appellant.

                        - - - - - - - - - -
           Appeal from the United States District Court
                 for the Western District of Texas
                        USDC No. P-96-CV-09
                        - - - - - - - - - -
                           March 19, 1998
Before WISDOM, WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

     Luis Raul Torres-Jaurequi appeals from the district court’s

order dismissing his motion to vacate, set aside, or correct

sentence pursuant to 28 U.S.C. § 2255.   Torres-Jaurequi argues

that the district court erred in finding no significant variance

between the indictment and the evidence where the indictment

accused him of importing methamphetamine into the United States

but the evidence shows he never entered into the United States,

but remained in customs territory.   He further argues that the

     *
        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that this opinion should not be published and is not precedent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.
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                                 -2-

district court erred in finding that trial counsel had been

ineffective for not challenging that variance, for failing to

challenge a variation in the Allen charge, and for failing to

request an independent lab report of the drugs seized in the

offense.   We have reviewed the record and the briefs and find

that Torres-Jaurequi has not demonstrated error, much less plain

error pertaining to the indictment for importation of

methamphetamine.   See United States v. McPhail, 112 F.3d 197, 199

(5th Cir. 1997); United States v. Calverley, 37 F.3d 160, 162

(5th Cir. 1994)(en banc), cert. denied, 513 U.S. 1996 (1995);

United States v. Armstrong, 951 F.2d 626 (5th Cir. 1992).     As

Torres-Jaurequi’s argument concerning the language of the

indictment is without merit, he has plainly failed to demonstrate

that his defense was prejudiced by counsel’s failure to assert

any such error at trial.    See Lowery v. Estelle, 696 F.2d 333,

343 (5th Cir. 1983).

     Torres-Jaurequi also argues that his attorney was

ineffective for failing to adequately challenge the modified

Allen charge delivered by the court at trial.     See Allen v.

United States, 164 U.S. 492, 501-02 (1996).     We examined that

issue on direct appeal and found no error.     United States v.

Torres-Jaurequi, No. 94-50233 at 5 n.5 (5th Cir. Aug. 3,

1995)(unpublished).    As there was no error with regard to the

Allen charge, Torres-Jaurequi’s counsel could hardly have been

deficient for failing to object to it.     See Lowery, 696 F.2d at
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                                 -3-

343.    Similarly, as the Government’s laboratory report showed the

substance from Torres-Jaurequi’s car tested positive for

approximately 22,000 grams of D-methamphetamine of 86% purity, a

demand by counsel for an independent lab report would have proved

futile, and there was no plain error in counsel’s not requesting

a second report.    See McPhail, 112 F.3d at 199; Lowery, 696 F.2d

at 343.

       AFFIRMED.
