                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 6, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-30325
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

GERALD BURRELL, also known as Gerald Floyd,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                    USDC No. 3:04-CR-116-ALL
                      --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges,

PER CURIAM:*

     Gerald Burrell appeals his conviction of possession of a

firearm by a convicted felon.   He argues that the district court

erred by departing upwardly based on his criminal history,

pursuant to U.S.S.G. § 4A1.3(a)(1), p.s., and that the district

court erred by denying him a downward adjustment for acceptance

of responsibility.

     Regardless whether the district court relied in part on

criminal episodes that should not have been considered, at least

one episode that did not result in a conviction was properly

     *
       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this opinion should not be published and is not precedent except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. 06-30325
                                -2-

considered in the upward departure decision.   Nothing in the

record suggests that the district court would have imposed

anything less than the maximum sentence allowed by the sentencing

range that resulted from its conservative method of determining

an appropriate range.   See Williams v. United States, 503 U.S.

193, 203 (1992).   The decision to depart upwardly was not an

abuse of discretion, see United States v. Simkanin, 420 F.3d 397,

416 (5th Cir. 2005), cert. denied, 126 S. Ct. 1911 (2006), and

the resulting sentence was reasonable.    See United States v.

Smith, 417 F.3d 483, 490 (5th Cir.), cert. denied, 126 S. Ct. 713

(2005).

     Burrell engaged in criminal conduct while on pretrial

release.   The district court did not err by denying him a

downward adjustment for acceptance of responsibility.    See United

States v. Hooten, 942 F.2d 878, 883 (5th Cir. 1991).

     AFFIRMED.
