                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    August 9, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-30931
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

MICHAEL K. LANDS,

                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                     USDC No. 3:03-CR-25-ALL
                       --------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

     Michael K. Lands appeals his sentence following his guilty

plea conviction for one charge of being a convicted felon in

possession of a firearm.    Lands argues that the district court

erred by assessing an adjustment to his base offense level in

accordance with U.S.S.G. § 2K2.1(b)(5).       Lands contends that the

§ 2K2.1(b)(5) adjustment was inappropriate because the discharge

offense is subsumed within his conviction for being a felon in

possession of a firearm.    Because this precise argument was not

raised in the district court, it is reviewed for plain error

     *
       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this opinion should not be published and is not precedent except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. 05-30931
                                  -2-

only.    See United States v. Villegas, 404 F.3d 355, 362-63 (5th

Cir. 2005).     Lands’s argument concerning the disputed adjustment

is unavailing.    The adjustment was based on Lands’s act of

discharging a firearm.    This act is distinct from his underlying

offense of possessing a firearm and provides a proper basis for

the adjustment.     See United States v. Outley, 348 F.3d 476,

477-78 (5th Cir. 2003).

     Lands argues that the district court erred by departing

upwardly at sentencing and imposing the statutory maximum term of

imprisonment.    Our review of the record shows that the district

court’s choice to depart was properly based on Lands’s

substantial criminal history as well as his propensity towards

violence, his obstruction of justice, and his risk of recidivism.

See U.S.S.G. § 4A1.3; see also United States v. Simkanin, 420

F.3d 397, 418 (5th Cir. 2005), cert. denied, 126 S. Ct. 1911

(2006); United States v. Ismoila, 100 F.3d 380, 397-98 (5th Cir.

1996); United States v. Daughenbaugh, 49 F.3d 171, 175 (5th Cir.

1995).    There is likewise no error in connection with the extent

of the departure.     See Simkanin, 420 F.3d at 419; see also United

States v. Smith, 417 F.3d 483, 491 (5th Cir.), cert. denied, 126

S. Ct. 713 (2005).

     The judgment of the district court is AFFIRMED.
