                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS          April 12, 2004
                         FOR THE FIFTH CIRCUIT
                                                            Charles R. Fulbruge III
                                                                    Clerk

                             No. 03-30565
                           Summary Calendar



UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSEPH ALEXANDER,

                                      Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
               for the Eastern District of Louisiana
                        USDC No. 02-CR-315-L
                        --------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges.

PER CURIAM:*

     Joseph Alexander appeals his concurrent 120-month sentences

following his plea of guilty to two counts of being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)

and 924(a)(2).    Alexander contends that the district court erred

in departing upward from a guideline sentencing range of 41 to 51

months.   Because Alexander’s sentences should be affirmed under

any standard of review, his motion to stay this appeal is denied.


     *
        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that this opinion should not be published and is not precedent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.    03-30565
                                   -2-

     Alexander argues that the fact that he was convicted of two

offenses did not support the district court’s upward departure.

The record supports the district court’s findings that

Alexander’s offenses were atypically serious and were not

adequately taken into account by the sentencing guidelines.

Alexander does not contest the district court’s finding that

threatening letters he had written also reflected that his

criminal history category significantly under-represented the

seriousness of his criminal history.

     Arguably, the district court did impermissibly base the

departure, in part, on Alexander’s prior firearm-related arrests

that did not result in conviction.      See United States v. Cantu-

Dominguez, 898 F.2d 968, 970-71 (5th Cir. 1990).      However, the

district court’s remaining reasons were valid and sufficient to

support its upward departure.      See Williams v. United States,

503 U.S. 193, 203-04 (1992).      Moreover, the extent of the

departure was reasonable.    See United States v. Daughenbaugh,

49 F.3d 171, 174-75 (5th Cir. 1995); United States v. Ashburn,

38 F.3d 807, 809 (5th Cir. 1994) (en banc).

     MOTION TO STAY APPEAL DENIED; JUDGMENT AFFIRMED.
