                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                   No. 00-31317

                              Summary Calendar


UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

                                      versus

DONALD A. DYER, also known as Blabber,

                                                  Defendant-Appellant.



              Appeal from the United States District Court
                  for the Eastern District of Louisiana
                                (98-CR-57)

                                July 23, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      After     defendant   Donald     Dyer    appealed   his    sentence    for

conspiracy to possess with intent to distribute heroin, this court

vacated   and    remanded    for    resentencing.     Dyer      appeals   again,

challenging various aspects of his resentencing.             We affirm.

                                        I

      Dyer first contends that the district court erred in employing

a preponderance-of-the-evidence standard in making factual findings


      *
       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should not be published and is not precedent except under the limited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.
for sentencing purposes.             Dyer contends that the district court

should have employed the clear-and-convincing-evidence standard.

Dyer has waived this issue by failing to argue it on his original

appeal in this case.        In any case, Dyer is wrong.             The standard is

preponderance of the evidence.1

                                         II

     Dyer     argues   that    the     district    court     violated     his   Fifth

Amendment right to remain silent by basing his sentence on the fact

that Dyer’s involvement in the uncharged murders was “unexplained.”

Even if the district court committed error, the passing reference

to “unexplained involvement” could be nothing more than harmless

error. The district court had found at the initial sentencing that

Dyer was involved in the murders.              This court upheld that factual

determination in the first appeal.                 Thus, the district court’s

comment could be nothing more than gratuitous, since the fact of

Dyer’s involvement had already been found.

                                         III

     Dyer contends that the district court erred in basing its

upward    departure    on   his      involvement    in   two    prior,    uncharged

murders.      He   argues     that    section     4A1.3(e)     of   the   Sentencing

Guidelines allows consideration of criminal conduct not resulting

in a conviction only when such conduct is “similar” to the offense




     1
         United States v. Hill, 2001 WL 788613, *2 (5th Cir. July 11, 2001).

                                          2
of conviction.2       Dyer failed to make this argument to the district

court.     Thus, we choose not to address it on appeal.3

                                      IV

      The judgement of the district court is AFFIRMED.




      2
          See U.S.S.G. § 4A1.3(e).
      3
        See United States v. Meshack, 225 F.3d 556, 578 n.21 (5th Cir. 2000)
(noting “general rule” that “claims cannot be brought on direct appeal absent
their having been raised adequately in the district court”). Dyer also contends
that the district court erroneously based the upward departure on a cross
reference to the murder guideline U.S.S.G. § 2A1.1, as authorized in some
circumstances by U.S.S.G. § 2D1.1(d)(1). The district court, however, did not
base its upward departure on § 2A1.1 and § 2D1.1(d)(1) but on § 4A1.3. This
claim has no merit.

                                      3
