                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         March 17, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 02-41787
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TERRY EARL ALLISON,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-674-ALL
                       --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Terry Earl Allison challenges his conviction and sentence

following a jury trial for possession of pseudoephedrine with

intent to manufacture a controlled substance.   21 U.S.C.

§§ 802(34)(K) and 841(c)(2).   He argues that 1) the evidence

supporting his conviction was insufficient; 2) the district court

plainly erred in calculating his criminal history score and

criminal history category and erred in classifying him as a


     *
        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that this opinion should not be published and is not precedent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. 02-41787
                                  -2-

career offender; and 3) the condition in his written judgment of

his supervised release barring his possession of a dangerous

weapon should be stricken because it conflicts with the sentence

orally pronounced by the district court.

     The evidence introduced at trial was sufficient to support

the jury’s finding that Allison knowingly and intentionally

possessed pseudoephedrine with the intent to manufacture a

controlled substance.     See United States v. Gutierrez-Farias, 294

F.3d 657, 660 (5th Cir. 2002), cert. denied, 537 U.S. 1114

(2003); 21 U.S.C. § 841(c)(2).

     As Allison concedes, his argument challenging the condition

of his supervised release that he not possess a dangerous weapon

is foreclosed by United States v. Torres-Aguilar, 352 F.3d 934,

935-38 (5th Cir. 2003).

     For the first time on appeal, Allison challenges the

district court’s calculation of his criminal history score and

the determination of his criminal history category and also

argues, for the first time on appeal, that the district court

erroneously classified him as a career offender under U.S.S.G.

§ 4B1.1.   “Under the plain error standard, forfeited errors are

subject to review only where the errors are ‘obvious,’ ‘clear,’

or ‘readily apparent,’ and they affect the defendant’s

substantial rights.”    United States v. Clayton, 172 F.3d 347, 351

(5th Cir. 1999)(citation omitted); United States v. Reyna,
                            No. 02-41787
                                 -3-

__F.3d__, 2004 WL 11379 at *5 (5th Cir. Jan. 26, 2004) (No. 01-

41164) (en banc).

     As the Government concedes, the district court erred to the

extent that Allison’s 20 criminal history points included nine

points for three suspended sentences.      See U.S.S.G.

§ 4A1.2(e)(2).    The district court also erred in assigning

Allison two criminal history points for an outstanding bench

warrant.    See U.S.S.G. § 4A1.1(d) and comment. (n.4).   Finally,

Allison should not have been classified as a career offender for

purposes of U.S.S.G. § 4B1.1(a).

     Allison’s total offense level of 36 and corrected criminal

history category of IV results in a corrected imprisonment range

under the Sentencing Guidelines of 262 to 327 months’

imprisonment.    U.S.S.G. Chapter 5, Part A, Sentencing Table.

Because the minimum sentence under the corrected guidelines range

is higher than the 240-month statutory maximum sentence, Allison

is subject to the same 240-month sentence as he originally

received.   U.S.S.G. § 5G1.1(a); 21 U.S.C. § 841(c)(2).   Thus, we

AFFIRM Allison’s 240-month prison sentence AS MODIFIED to reflect

that for sentencing purposes, Allison is not a career offender

under U.S.S.G. 4B1.1(a), and his corrected criminal history

category is IV.

     JUDGMENT OF CONVICTION AFFIRMED; SENTENCE AFFIRMED AS

MODIFIED.
