
    UNITED STATES of America, Plaintiff—Appellee, v. Juan Benito CASTRO, aka Tony R. Lanier, Defendant—Appellant.
    No. 03-50444.
    United States Court of Appeals, Ninth Circuit.
    Submitted Aug. 3, 2004.
    
    Decided Aug. 27, 2004.
    Ronald L. Cheng, Esq., Beverly Reid O’Connell, Esq., USLA — Office of the U.S. Attorney, Los Angeles, CA, for PlaintiffAppellee.
    H. Dean Steward, Esq., San Clemente, CA, for Defendant-Appellant.
    Before: REINHARDT, KOZINSKI, and CLIFTON, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Castro argues that the district court erred in failing to vacate counts 1, 2, 5, and 6 of the indictment on account of a fatal variance between the indictment and the facts proved at trial. Because Castro could have raised this issue in his prior appeal but did not, we conclude that he has waived his right to do so now. United States v. Nagra, 147 F.3d 875, 882 (9th Cir.1998).

The district court’s denial of Castro’s fatal variance claim is AFFIRMED.

The mandate shall issue forthwith. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     
      
      . In a separate opinion filed concurrently herewith, we remand Castro’s sentence for further proceedings.
     