IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20072 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GLYNN MICHAEL KIRKLAND,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CR-256-1 --------------------

December 9, 1999

Before POLITZ, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Glynn Michael Kirkland appeals his

conviction following a jury trial on two counts of possession of a

firearm by a convicted felon arising out of the purchase of a

shotgun while he was employed as a sales manager at a used car

dealership. Kirkland concedes that his counsel failed to renew his

motion for judgment of acquittal, and thus, our review is limited

to determining whether there was a manifest miscarriage of justice.

See United States v. Galvan,

(5th Cir. 1991).

Such a miscarriage occurs only when the record is devoid of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. evidence to support the verdict or when the evidence is so tenuous

with respect to a key element of the offense that a conviction

would be shocking. See

With respect to the first count, the evidence was

uncontradicted that Kirkland decided to purchase the shotgun,

provided the funds for it, transported it in his vehicle, and had

access to it. Viewing the evidence in the light most favorable to

the Government, see

, we cannot say that the record is

devoid of evidence of Kirkland’s intent or that the evidence of

guilt was so tenuous as to render a guilty verdict shocking.

We also reject Kirkland’s contention that the variance between

the date alleged in the indictment and the evidence adduced at

trial is fatal to his conviction. The time an offense is committed

is not an essential element of the offense, and the Government need

not prove the exact date. See United States v. Bowman,

(5th Cir. 1986). The record is not devoid of evidence

that the offense occurred in October as alleged in the indictment.

Further, a four or five month discrepancy is not unreasonable. See

Any confusion regarding the precise date does not alter the

fact that both the Donaldsons testified that Kirkland retrieved the

shotgun and Mrs. Donaldson saw him drive away with it in his car.

For the foregoing reasons, we affirm the judgment of the

district court.

AFFIRMED.

2