                                                       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. 04-10632
                        Conference Calendar


UNITED STATES OF AMERICA,

                            Plaintiff-Appellee,

versus

DERIC DESHON CALTON,

                            Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 5:03-CR-80-1-C
                       --------------------

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

PER CURIAM:*

     Deric Deshon Calton pleaded guilty to being a felon in

possession of a firearm.    The district court applied the cross-

referencing provision of U.S.S.G. § 2K2.1 and computed Calton’s

offense level by using U.S.S.G. § 2A1.2, the guideline for second

degree murder and the most analogous offense under the guidelines

for the offense conduct of killing Harold Williams.     The district

court sentenced Calton to 120 months in prison, to be followed by

three years of supervised release.



     *
       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this opinion should not be published and is not precedent except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. 04-10632
                                -2-

     On appeal, Calton argues that the cross-reference provision

of U.S.S.G. § 2K2.1(c)(1) does not apply because he used the

firearm in self-defense, not in connection with the commission of

another offense.   This court reviews the application of the

Sentencing Guidelines de novo, and it reviews the sentencing

court’s factual findings for clear error.    United States v.

Edwards, 65 F.3d 430, 432 (5th Cir. 1995).   For sentencing

purposes, the district court “may consider any information which

has sufficient indicia of reliability to support its probable

accuracy.”   United States v. Mitchell, 166 F.3d 748, 754 (5th

Cir. 1999) (internal quotation marks and citation omitted).

     Section 2K2.1(c)(1)(B) instructs that if the defendant

“possessed or transferred a firearm or ammunition with the

knowledge or intent that it would be used or possessed in

connection with another offense” and a death resulted, the

defendant’s base offense level is to be determined by applying

“the most analogous offense guideline” for homicide, if it

results in a higher offense level.   § 2K2.1(c)(1)(B) & comment.

(n.14).   The presentence report (PSR) and the testimony at

sentencing were unequivocal and consistent in relating that

Calton and Williams were involved in an altercation in the street

and that Williams had taken two shots at Calton.   The PSR and the

testimony at sentencing were equally unequivocal and consistent

in relating that after Williams shot at him, Calton entered a

nearby residence rented by Randy Cravin, retrieved a .22 caliber
                            No. 04-10632
                                 -3-

rifle kept at Cravin’s residence, shot Williams in the chest from

the doorway of the residence, exited the residence, and shot

Williams again as Williams lay on the sidewalk.    Notwithstanding

Calton’s general argument to the contrary, the district court was

not clearly erroneous in finding that the shooting of Williams,

once from a doorway and again as he lay bleeding, was not an act

of self-defense.    As the district court was not clearly erroneous

in its factual finding adopting the background facts contained in

the PSR, the district court did not err by using § 2K2.1(c)(1)(B)

to compute Calton’s sentence.    Mitchell, 166 F.3d at 754.

     For the first time on appeal, Calton argues that the

district court should have granted him a downward departure from

the guidelines because he was provoked by Williams.    We have

jurisdiction to review a refusal to downwardly depart from the

guideline sentencing range only if the district court based its

decision on an erroneous belief that it lacked the authority to

depart.    United States v. Buck, 324 F.3d 786, 797 (5th Cir.

2003).    As Calton has not alleged that the district court was

unaware of the ability to depart and the record contains no

support for such an allegation, we are without jurisdiction to

consider the issue.    See United States v. Landerman, 167 F.3d

895, 899 (5th Cir. 1999).

     Calton’s sentence is AFFIRMED.
