                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 28, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-40735
                          Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RUBEN MICHAEL PENA,

                                     Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                       USDC No. 3:04-CR-15-ALL
                         --------------------

Before KING, BARKSDALE, and GARZA, Circuit Judges.

PER CURIAM:*

     Ruben Michael Pena pleaded guilty to count 1 of a indictment

charging him with being a felon in possession of a firearm.         Pena

was sentenced to a 96-month term of imprisonment and to a three-

year period of supervised release.   Pena has appealed his

sentence.

     Pena contends that the district court erred in considering

two prior sentences, imposed in 1984 and 1989, in determining his

criminal history category because those sentences were imposed

more than 15 years prior to the commencement of the instant

     *
       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this opinion should not be published and is not precedent except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. 05-40735
                                  -2-

offense.   Pena also contends that one of those convictions should

have been regarded as a juvenile conviction for purposes of

U.S.S.G. § 4A1.2(d).

     Pena does not dispute that he was tried as an adult for the

1984 offense.     See § 4A1.2(d)(1).   Because the 1984 conviction

resulted in Pena being incarcerated within the 15-year period,

the district court properly assigned the sentence three criminal

history points.     See § 4A1.2(e)(1); United States v. Arnold, 213

F.3d 894, 895–96 (5th Cir. 2000); United States v. Ybarra, 70

F.3d 362, 366–67 (5th Cir. 1995); United States v. Gipson, 46

F.3d 472, 475 (5th Cir. 1995).    Because the sentence for the 1989

conviction was “imposed” within 15 years of the date of the

instant offense, the district court also properly assigned that

sentence three criminal history points.      See Arnold, 213 F.3d at

895; § 4A1.2(e)(1).

     Pena contends also that the district court erred in

assigning criminal history points for the 1989 felony conviction

and for a 1992 felony conviction because those convictions were a

necessary predicate for his conviction of being a felon in

possession of a firearm and affected the determination of his

offense-level under U.S.S.G. § 2K2.1(a)(2).     He argues that

consideration of these felony convictions in determining his

criminal history category constituted improper double counting.

In United States v. Hawkins, 69 F.3d 11, 14–15 (5th Cir. 1995),

we held that the Guidelines permit the district court to consider
                             No. 05-40735
                                  -3-

a defendant’s prior felony convictions in calculating both his

offense level under § 2K2.1(a)(1) and his criminal history

category.   See § 2K2.1, comment. (n.12).   Pena’s double counting

argument is without merit.

     Pena contends that the district court violated United States

v. Booker, 543 U.S. 220 (2005), by making fact findings with

respect to his endangerment of a child, drug use, and possession

of a weapon in a family household.    Because Pena was sentenced

after the Supreme Court issued its opinion in Booker, however,

Pena was sentenced pursuant to advisory Sentencing Guidelines.

Accordingly, the constitutional holdings of Booker, Blakely v.

Washington, 542 U.S. 296 (2004), and Apprendi v. New Jersey, 530

U.S. 466 (2000), are not applicable.    See United States v.

Walters, 418 F.3d 461, 463 (5th Cir. 2005); United States v.

Mares, 402 F.3d 511, 519 (5th Cir. 2005).

     Pena contends that the district court erred in assigning

four levels under § 2K2.1(b)(5) because the evidence did not show

that the firearm, which was found during a search of his

residence, facilitated and made more dangerous another crime.

Section 2K2.1(b)(5) provides, in pertinent part,

     If the defendant used or possessed any firearm or
     ammunition in connection with another felony offense;
     or possessed or transferred any firearm or ammunition
     with knowledge, intent, or reason to believe that it
     would be used or possessed in connection with another
     felony offense, increase [the defendant’s offense
     level] by 4 levels.
                            No. 05-40735
                                 -4-

§ 2K2.1(b)(5).   The enhancement should be assessed “‘even if the

defendant only possesses a firearm in connection with any other

felony.’”    United States v. Washington, 340 F.3d 222, 231 (5th

Cir. 2003) (quoting United States v. Condren, 18 F.3d 1190, 1196

(5th Cir. 1994)).   A firearm is possessed “in connection with

another felony offense” if the firearm “may have facilitated or

made more dangerous the other felony offense.”    United States v.

Villegas, 404 F.3d 355, 364 (5th Cir. 2005).

     Pena was charged by state authorities with the offense of

possession of a controlled substance with intent to

deliver—habitual, based on two controlled purchases by a

confidential informant from Pena of small quantities of cocaine.

These purchases led to the issuance of a search warrant for

Pena’s residence, which resulted in the instant firearms

conviction.    The firearm, trace amounts of cocaine, a small

metal spoon, a large amount of currency, and scales were found in

the bathroom of the residence.   Four small children resided in

the house.    At the time the presentence report was prepared, Pena

was charged but not yet indicted for child endangerment.   Based

on these facts, the district court could reasonably infer that

the firearm was possessed in connection with either the

controlled substance offense or the child-endangerment offense.

The district court did not clearly err in enhancing Pena’s

offense level pursuant to § 2K2.1(b)(5).    See United States v.

Caldwell, 448 F.3d 287, 290 (5th Cir. 2006); Villegas, 404 F.3d
                           No. 05-40735
                                -5-

at 363-64; Washington, 340 F.3d at 231; Condren, 18 F.3d at 1198-

1200.

     Pena contends that the district court should have departed

downward from the guideline imprisonment range.     This court

ordinarily lacks jurisdiction to review a district court’s

refusal to depart downwardly.      United States v. Hernandez, 457

F.3d 416, 424 (5th Cir. 2006).     The record does not support

Pena’s contention that the district court was under the erroneous

belief that it lacked the authority to grant a downward

departure.   See id. at 424 n.5.    The district court’s judgment is

     AFFIRMED.
