                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         October 15, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-30206
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                                versus

                        DERRICK D. MORRIS,

                       Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                     USDC No. 02-CR-50068-ALL
                       --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Derrick D. Morris appeals his sentence following a guilty-plea

conviction for possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1).         Morris argues that the

district court erred in departing upward on the basis of death

pursuant to U.S.S.G. § 5K2.1.

     The provision relied upon by Morris applies when a defendant

used or possessed a firearm “in connection with the commission or


     *
        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that this opinion should not be published and is not precedent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. 03-30206
                                       -2-

attempted       commission   of     another      offense.”          U.S.S.G.   §

2K2.1(c)(1)(B).      Morris has not argued that he used or possessed

the assault rifle in relation to an underlying offense, thereby

triggering the clause.       See id., comment. (n.14).             Section 2K2.1

does not take into account the factor of a resultant death if the

firearm-possession       offense    was   not   related   to   an    underlying

offense.    See § 5K2.0.      Furthermore, the guideline specifically

provides that the district court may depart upward on the basis of

death.      §   2K2.1,   comment.    (n.16);     see   also    §    5K2.1,   p.s.

Regardless whether this court applies a de-novo or an abuse-of-

discretion standard of review, we affirm the sentence imposed by

the district court because it did not err in departing upward on

the basis of death.       See 18 U.S.C. § 3742(e)(4); United States v.

Semsak, No. 02-30153, 2003 WL 21730615, at *1 (9th Cir. Jul. 28,

2003); United States v. Camejo, 333 F.3d 669, 675 (6th Cir. 2003);

United States v. Tarantola, 332 F.3d 498, 500 (8th Cir. 2003); but

see United States v. Jones, 332 F.3d 1294, 1299-1300 (10th Cir.

2003) (applying de novo standard of review to an appeal pending as

of April 30, 2003).

     AFFIRMED.
