                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                December 16, 2004

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 03-31054
                          Conference Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

LESTER SMITH, also known as Lester Smith, III, also known as
Lester Smith, Jr.,

                                      Defendant-Appellant.

                         --------------------
             Appeal from the United States District Court
                 for the Middle District of Louisiana
                      USDC No. 03-CR-12-ALL-B-MI
                         --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Lester Smith appeals the sentence of 180 months of

imprisonment imposed by the district court following his guilty

plea conviction for being a felon in possession of a firearm.

Smith first argues that his sentence violates the Eighth

Amendment.     Measured against the benchmark of Rummel v. Estelle,

445 U.S. 263 (1980), Smith’s 180-month sentence is not grossly

disproportionate and thus does not violate the Eighth Amendment.


     *
        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that this opinion should not be published and is not precedent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. 03-31054
                                  -2-

See United States v. Gonzales, 121 F.3d 928, 943-44 (5th Cir.

1997).   Smith’s sentence is AFFIRMED.

     Smith also contends that he was entitled to application of

the “lesser harm” policy.    We understand this to be an argument

that Smith was entitled to a downward departure under U.S.S.G.

§ 5K2.11.   Because the record does not indicate that the district

court erroneously believed that it lacked the authority to

downwardly depart under this guideline, we lack jurisdiction to

consider this argument.     See United States v. Landerman, 167 F.3d

895, 899 (5th Cir. 1999).    Accordingly, Smith’s appeal of this

issue is DISMISSED.

     AFFIRMED IN PART; DISMISSED IN PART.
