IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50072
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RON MOORE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-95-CR-241-1
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September 11, 1997
Before JOLLY, SMITH, and STEWART, Circuit Judges.
PER CURIAM:*
Ron Moore appeals his conviction and sentence for conspiracy
to distribute, aiding and abetting the distribution of, and
distribution of, cocaine base. Moore asserts that there was a
material and prejudicial variance between the indictment and the
proof offered by the Government at trial, that the district court
erred in including a one-kilogram quantity of crack cocaine in
the drug-quantity used to determine his base offense level, and
that the district court abused its discretion by denying his
*
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that this opinion should not be published and is not precedent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. 97-50072
-2-
motion for a continuance to examine the absence of African-
Americans on the venire.
Moore has failed to establish that there was a variance
between the indictment and the proof at trial that caused
prejudice to his substantial rights. United States v. Pena-
Rodriguez, 110 F.3d 1120, 1127-28 (5th Cir. 1997), petition for
cert. filed, 65 U.S.L.W. 3839 (U.S. Jun. 13, 1997) (No. 96-1977).
The district court did not clearly err by including the one-
kilogram quantity of crack cocaine in the drug-quantity used to
establish Moore’s base offense level. See United States v.
Davis, 76 F.3d 82, 85-86 (5th Cir. 1996) (district court may
attribute to defendant the amount of an unconsummated
transaction, if defendant intended to, and was reasonably capable
of, producing that amount). Moore has not alleged or shown that
he suffered “serious prejudice” as a result of the district
court’s denial of his motion for a continuance. See United
States v. Alix, 86 F.3d 429, 434-35 (5th Cir. 1996). Moore has
not established a prima facie violation of the fair-cross-section
requirement. See Alix, 86 F.3d at 434. Accordingly, the
district court did not abuse its discretion by denying Moore’s
motion for a continuance. See id.
Moore’s conviction and sentence are AFFIRMED.