                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT



                                   No. 02-20544
                                 Summary Calendar



                             UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                         versus

                                 KARL GEAN GIVENS,

                                               Defendant-Appellant.

                           --------------------
               Appeal from the United States District Court
                    for the Southern District of Texas
                          USDC No. H-99-CR-410-1
                           --------------------
                             February 21, 2003

Before BARKSDALE, DeMOSS and BENAVIDES, CIRCUIT JUDGES.

PER CURIAM:*

       Karl Gean Givens appeals his conviction and sentence following

pleading guilty to being a felon in possession of a firearm in

violation      of   18   U.S.C   §     922(g)(1).       He    argues   that   he   was

improperly denied a downward departure and that Application Note 2

following U.S.S.G. § 5G1.3 is unconstitutional because it states

that       courts   should    credit    time   served    on    undischarged    state




       *
        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that this opinion should not be published and is not precedent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.
sentences for related offenses but is silent as to crediting fully

discharged state sentences for related offenses.

          We need not reach the constitutional issue because Givens

requested only a downward departure.               There is no evidence that the

district court mistakenly believed it could not depart. Therefore,

the district court’s discretionary decision not to award a downward

departure is not reviewable.               See United States v. Landerman, 167

F.3d 895, 899 (5th Cir. 1999).

          Givens also argues that the fact that his firearms were not

manufactured in Texas and therefore traveled in and affected

interstate             commerce   was   legally   insufficient   to   support   the

interstate commerce nexus required by 18 U.S.C. § 922(g)(1).                    This

claim is foreclosed by United States v. Daugherty, 264 F.3d 513,

518 (5th Cir. 2001), cert. denied, 534 U.S. 1150 (2002).                        The

judgment of the district court is AFFIRMED.




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