                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                                No. 03-4408
RONALD JAY MORTON,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
              Deborah K. Chasanow, District Judge.
                        (CR-02-325-DKC)

                      Submitted: January 23, 2004

                      Decided: February 17, 2004

 Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Douglas J. Wood, Riverdale, Maryland, for Appellant. Thomas M.
DiBiagio, United States Attorney, Barbara S. Skalla, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                      UNITED STATES v. MORTON
                               OPINION

PER CURIAM:

   Ronald Jay Morton pled guilty to possession of more than 100
grams of phencyclidine (PCP) with intent to distribute, 21 U.S.C.A.
§ 841(a), (b)(1)(B) (West 1999 & Supp. 2003), and was sentenced to
the mandatory minimum term of five years imprisonment. He appeals
his sentence, arguing that the district court erred in assigning one
criminal history point for a prior eighteen-month sentence of proba-
tion for fleeing to elude police,* U.S. Sentencing Guidelines Manual
§§ 4A1.1(c), 4A1.2(c)(1) (2002), and that the court failed to recognize
its authority to depart downward pursuant to USSG § 4A1.3, p.s., to
make Morton eligible for the safety valve provisions, USSG
§§ 2D1.1(b)(6), 5C1.2. We affirm.

   Under § 5C1.2, a defendant may be sentenced below a mandatory
minimum sentence if he meets five criteria, the first of which is that
he may not have more than one criminal history point "as determined
under the sentencing guidelines." USSG § 5C1.2(a)(1). Application
Note 1 explains that, "‘[m]ore than 1 criminal history point, as deter-
mined under the sentencing guidelines,’ . . . means more than one
criminal history point as determined under § 4A1.1 (Criminal History
Category)." Morton’s offense level was 23 and he had two criminal
history points, which placed him in criminal history category II and
resulted in a guideline range of sixty months (the mandatory mini-
mum sentence) to sixty-three months.

   Morton sought to convince the district court that his prior sentence
for fleeing to elude police should be excluded from the criminal his-

   *This incident apparently occurred in an area under federal jurisdiction
as Morton was charged with several state offenses arising from the acci-
dent and prosecuted in the U.S. District Court for the District of Mary-
land. See 18 U.S.C. § 13 (2000) (assimilated crimes). He was convicted
only of "flee to elude." See Md. Code Ann. (Transp.) § 21-904 (2002).
Although Morton characterizes his offense as fleeing on foot, it is not
clear from the information in the presentence report or the sentencing
transcript whether he fled on foot or in a vehicle, both of which are pro-
hibited under the statute.
                       UNITED STATES v. MORTON                          3
tory calculation under § 4A1.2(c)(2) because it was similar to certain
minor offenses listed there that are never counted. The district court
disagreed, finding that the offense was more like those listed under
§ 4A1.2(c)(1), misdemeanor and petty offenses that are counted only
in certain circumstances. One such circumstance is that the sentence
was a term of probation of at least one year. "Flee to elude" is not
listed, but offenses similar to the listed offenses are also to be counted
unless they are excluded because of the brevity of the sentence. The
court found that one criminal history point was properly awarded for
the eighteen-month sentence of probation.

   Morton also requested a downward departure to criminal history
category I under § 4A1.3, which he maintained would eliminate one
of his criminal history points and made him eligible for a sentence
under the safety valve. The district court determined that a departure
would not alter Morton’s criminal history score, declined to depart,
and imposed a sentence of sixty months imprisonment.

   We first conclude that the district court did not err in counting
Morton’s sentence for fleeing to elude. Morton argues that fleeing to
elude should be considered a minor traffic offense that is less serious
than the offenses listed in § 4A1.2(c)(1) because it is conduct that is
prohibited under the Maryland Transportation Code rather than the
criminal code. However, a first violation of § 21-904 of the Maryland
vehicle law is a misdemeanor punishable by a fine of $1000 or
imprisonment for not more than a year. Md. Code Ann. (Transp.)
§ 27-101(p) (2002). Thus, it is more than a minor traffic infraction,
which would be punishable by a civil penalty. The district court did
not err in deciding that fleeing to elude police is an offense that is
similar to those offenses listed in § 4A1.2(c)(1). Because Morton
received a sentence of probation for more than one year, the sentence
was correctly counted. The rule of lenity does not apply because
§ 4A1.2(c)(1) is not ambiguous; it merely requires the district court
to determine whether a particular state offense is similar to the listed
offenses. See United States v. Webb, 218 F.3d 877, 881 (8th Cir.
2000) (to determine which offenses are similar to those listed in
§ 4A1.2(c), court considers plain meaning of "similar" and compares
resemblance and character of offenses).

  Second, Morton argues that the district court wrongly decided that
a departure under § 4A1.3 would not reduce his criminal history
4                     UNITED STATES v. MORTON
points and thus would not make him eligible for a sentence below the
mandatory minimum pursuant to § 5C1.2 or the two-level reduction
under § 2D1.1(b)(6). However, Application Note 1 to § 5C1.2 states
that, "‘More than 1 criminal history point, as determined under the
sentencing guidelines’ . . . means more than one criminal history point
as determined under § 4A1.1 (Criminal History Category)." Follow-
ing the commentary, other circuits that have addressed the issue have
all held that a departure to criminal history category I does not alter
the computation of a defendant’s criminal history points and that a
defendant whose correctly determined criminal history score includes
more than one point is not eligible for a sentence under the safety
valve provision. United States v. Penn, 282 F.3d 879, 881 (6th Cir.
2002) (safety valve provision limited to defendants who have no more
than one criminal history point as calculated under § 4A1.1 regardless
of whether district court departs under § 4A1.3); Webb, 218 F.3d at
881-82; United States v. Owensby, 188 F.3d 1244, 1246 (10th Cir.
1999); United States v. Robinson, 158 F.3d 1291, 1294 (D.C. Cir.
1998); United States v. Orozco, 121 F.3d 628, 630 (11th Cir. 1997);
United States v. Resto, 74 F.3d 22, 28 (2d Cir. 1996); United States
v. Valencia-Andrade, 72 F.3d 770, 774 (9th Cir. 1995). We find these
decisions persuasive. The district court correctly determined that a
departure would not make Morton eligible for the safety valve provi-
sion.

   Morton also contends that the district court failed to acknowledge
its authority to depart downward under § 4A1.3 on the ground that
criminal history category II overstated his criminal record. Generally,
the district court’s decision not to depart is only reviewable on appeal
if the district court based its decision on a mistaken belief that it
lacked legal authority to depart. United States v. Edwards, 188 F.3d
230, 238-39 (4th Cir. 1999). The record discloses that the district
court was not in any doubt about its authority to depart under
§ 4A1.3, but decided that there was no point in considering a depar-
ture because a departure would not lower the number of Morton’s
criminal history points and thus would not benefit him. In this it was
correct.

   We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
                     UNITED STATES v. MORTON                      5
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

                                                        AFFIRMED
