               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 01-20961
                           Summary Calendar



UNITED STATES OF AMERICA

                Plaintiff - Appellee

     v.

RICARDO SMALLHORN MURRAY

                Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. H-01-CR-249-ALL
                      --------------------
                          May 20, 2002

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

PER CURIAM:*

     Ricardo Smallhorn Murray was indicted for unauthorized use

of another individual’s name and Social Security number with

intent to commit a state felony offense, in violation of 18

U.S.C. §§ 1028(a)(7) & 2.    Murray pleaded guilty and was

sentenced to 78 months’ imprisonment.

     On appeal, Murray argues that the district court erred in

accepting his plea because the factual basis did not establish


     *
        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that this opinion should not be published and is not precedent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. 01-20961
                                -2-

that his particular unauthorized use of the identification

information “in or affect[] interstate or foreign commerce.”

Because this objection was not raised below, Murray acknowledges

that review is limited to plain error.     See United States v.

Marek, 238 F.3d 310, 315 (5th Cir.)(en banc), cert. denied, 122

S. Ct. 37 (2001)).   The factual summary stated that Murray had

used this identification information to submit a loan application

to Chase Manhattan Bank and that Murray’s employer was engaged in

interstate commerce.   Based on these facts, the district court

did not plainly err in concluding that the jurisdictional element

of the statute was satisfied.

     Murray also argues that the district court erred in

departing upward from the applicable guideline range.    Because he

failed to object to the departure on the grounds he urges in his

appeal, review is limited to plain error.     See United States v.

Alford, 142 F.3d 825, 830 (5th Cir. 1998).    Murray first argues

that the district court erred by beginning its upward departure

from an incorrect offense level.    Where the plain-error standard

of review is applicable, this court will uphold a defendant’s

sentence if, on remand, the district court could reinstate the

same sentence by relying on a reasonable application of the

sentencing guidelines.   Id.    Murray was sentenced to 78 months’

imprisonment, within what would have been the correct range had

the district court’s started its departure from the correct

offense level.
                           No. 01-20961
                                -3-

     Murray argues that the district court erred by considering a

prior state conviction and sentence as a partial basis for upward

departure because that conviction was included in the relevant

conduct used to calculate his base offense level.   The district

court plainly erred under United States v. Cade, in which this

court held that “if the district court uses sentences as relevant

conduct, the district court cannot use those same sentences as

the basis of a criminal history category departure under

§ 4A1.3(a).”   See 279 F.3d 265, 272 (5th Cir. 2002).   However,

because the upward departure was not based on this single prior

sentence, we decline to correct the error because it does not

seriously affect the fairness, integrity, or public reputation of

judicial proceedings.   See Alford, 142 F.3d at 830.

     Finally, Murray argues that the upward departure was based

in part on prior convictions not included in his criminal history

score because of their age, and that these convictions did not

involve “similar, or serious dissimilar, criminal conduct,” as

required by U.S.S.G. § 4A1.2, comment. (n.8).   Because this court

has never clearly explained what is considered “similar, or

serious dissimilar” conduct, the district court could not have

plainly erred by considering these prior convictions as such.

     Therefore, Murray’s conviction and sentence are AFFIRMED.
