                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 26, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-41357
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                           GLEN BOLIVER,

                                                 Defendant-Appellant.



          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 4:03-CR-15-1


Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

          Glen Boliver appeals his 235-month sentence for con-

spiring to manufacture methamphetamine.     He contends that the

district court erred by (1) attributing 10 pounds (4.3 kilograms)

of methamphetamine to him; (2) adjusting his offense level for

possession of a firearm; (3) attributing one criminal-history point

for a theft conviction; and (4) declining to depart downward


     *
        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that this opinion should not be published and is not precedent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.
because a conviction for driving with a suspended license, which

resulted      in   one   criminal-history         point,   overrepresented       the

seriousness of Boliver’s criminal history.

              Any error in the attribution of 10 pounds of metham-

phetamine was harmless.          There was sufficient evidence in the

record   to    support     attribution       of   at   least   two   kilograms   of

methamphetamine, which together with the 3.2 grams of cocaine he

possessed, placed Boliver at base offense level 34, the same base

offense level applicable to 10 pounds.             U.S.S.G. § 2D1.1(c)(3); see

United States v. Narviz-Guerra, 148 F.3d 530, 537-38 (5th Cir.

1998).

              The evidence supported the adjustment for possession of

a   firearm.       James   Helton’s   testimony        indicated     that   Boliver

possessed a firearm during a drug-related confrontation.                         See

United States v. Eastland, 989 F.3d 760, 770 (5th Cir. 1993);

U.S.S.G. § 2D1.1(b)(1).

              The district court’s comments at sentencing did not

indicate that the district court was unaware of its discretion to

depart downwardly based on possible overrepresentation of the

seriousness of Boliver’s criminal history.                     We therefore lack

jurisdiction to consider whether the district court erred by

declining to depart.        United States v. Landerman, 167 F.3d 895, 899

(5th Cir. 1999).

              We need not address Boliver’s contention regarding the

one criminal history point assigned to his theft offense -- any

                                         2
error regarding the assignment of that point would be harmless, as

Boliver would remain in criminal history category III. See Narviz-

Guerra, 148 F.3d at 537-38.

          AFFIRMED.




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