                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS       September 24, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-30138
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                          GREGORY NETTER,

                                                 Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
              for the Middle District of Louisiana
                       USDC No. 02-CR-65-1
                      --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Gregory Netter appeals the sentence imposed following his

guilty-plea conviction for being a felon in possession of a firearm

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

court abused its discretion in relying on impermissible factors in

its decision to depart upward due to the inadequacy of Netter’s

criminal history category.   The district court did not abuse its

discretion in considering three prior convictions for which Netter

did not receive any criminal history points due to their remoteness

     *
        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this opinion should not be published and is not precedent except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.
in time.   See U.S.S.G. § 4A.13(a)(policy statement); United States

v. Harrington, 114 F.3d 517, 520 (5th Cir. 1997).                     The district

court did not abuse its discretion in considering that Netter had

a pending charge for possession of marijuana at the time that he

committed the instant offense.                 See U.S.S.G. § 4A1.3(d).                The

district   court      also   considered        Netter’s    history        of    domestic

violence and his numerous misdemeanor and felony charges which did

not result in convictions.             Although we have not addressed the

subject, three other circuits have held that a district court may

rely on conduct underlying dissimilar unadjudicated offenses.                          See

United States v. Cox, 299 F.3d 143, 147 (2d Cir. 2002); United

States v. Brewster, 127 F.3d 22, 26 (1st Cir. 1997); United States

v. Schweihs, 971 F.2d 1302, 1319-20 (7th Cir. 1992).                            However,

because    the    district      court’s       other    reasons     were    valid       and

sufficient       to   support    its   upward         departure,    any        error   in

consideration of these factors was harmless.                  Williams v. United

States, 503 U.S. 193, 204 (1992); United States v. Kay, 83 F.3d 98,

101 (5th Cir. 1996).

     AFFIRMED.




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