                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT


                               No. 00-10529
                             Summary Calendar


                        UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

                           DOMINICK NIGEL TUTT,

                                                    Defendant-Appellant.

            Appeal from the United States District Court
                 for the Northern District of Texas
                          (4:99-CR-270-1-A)

                            February 14, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     On    multiple   grounds,   Dominick   Nigel   Tutt   challenges   his

conviction and sentence for being a felon in possession of a

firearm.    Tutt entered a conditional guilty plea, reserving the

right to appeal the denial of his motion to suppress.

     Concerning that motion, Tutt contends the district court erred

by not suppressing statements he made to an attorney and an

investigator representing Clyde Jones, Jr., in whose residence

firearms were found. Tutt maintains the statements were subject to

the attorney-client privilege under the common or joint defense

exception to the rule that the privilege may be waived by making

disclosures to third parties.      See In re Auclair, 961 F.2d 65, 69

     *
       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this opinion should not be published and is not precedent except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.
(5th Cir. 1992) (“Because the privilege protects only confidential

communications, the presence of a third person ... eliminates the

intent for confidentiality on which the privilege rests.               The

privilege is not, however, waived if a privileged communication is

shared with a third person who has a common legal interest with

respect to the subject matter of the communication.” (emphasis

added)).       Tutt has failed to show the district court clearly erred

in finding Tutt and Jones were not pursuing a joint defense.           See

id.    (In fact, Tutt’s testimony at Jones’ trial that he (Tutt)

owned the guns in Jones’ apartment led to Jones’ acquittal and

later to Tutt’s indictment.)

       Next, Tutt maintains his disclosures to the attorney and the

investigator were inadmissible hearsay. A statement is not hearsay

if it "is offered against a party and is (A) the party's own

statement...."       FED. R. EVID. 801(d)(2); see United States v. Dixon,

132 F.3d 192, 198 (5th Cir. 1997) (discussing party admissions),

cert. denied, 523 U.S. 1096 (1998).          Furthermore, Tutt asserts the

statements were not voluntarily made because he was not informed

they could be used against him and because there was no showing he

believed them to be true.           This contention relies on the rule that

a statement is not hearsay if the party has manifested an adoption

or    belief    in   its   truth.      FED. R. EVID. 801(d)(2)(B).    This

alternative hearsay exception does not preclude the admission of

evidence under a separate exception.

       Tutt claims also the Government should have been collaterally

estopped from using the testimony in his case because it had


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asserted   in     Jones'   trial   that       the   evidence    was     inadmissible

hearsay.     In that trial, the Government merely asserted that the

statements where inadmissible hearsay when offered against Jones.

Because this is not inconsistent with asserting the statements were

not hearsay when offered against Tutt, the district court did not

err.

       Regarding his sentence, Tutt asserts the district court erred

in holding his prior conviction for theft of a vehicle should be

considered    a   “crime   of   violence”.          United     States    v.   Galvan-

Rodriguez held that a conviction for unauthorized use of a motor

vehicle was a conviction for a crime of violence.                     169 F.3d 217,

218-20 (5th Cir.), cert. denied, 528 U.S. 837 (1999).                    In the case

at hand, the district court reasoned that, if unauthorized use of

a motor vehicle is a crime of violence, then theft of a motor

vehicle is even more so.           Considering Tutt’s prior conviction a

crime of violence affected the computation of his base offense

level under U.S.S.G. § 2K2.1(a)(4)(A).                Tutt has failed to show

that the district court erred in applying U.S.S.G. § 2K2.1(a).

       Finally, Tutt claims the district court erred in departing

upward from the guideline range based upon prior criminal conduct

for which he had not been convicted.                Tutt maintains the court's

findings lack an adequate evidentiary basis.                   This contention is

without merit; probation officer reviewed the arrest records and

police reports, which provided enough detail to enable the officer

to determine it was probable Tutt had committed the offenses. Tutt

offered no evidence to rebut the information in the presentence


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investigation   report.   Therefore,   without   further   inquiry    or

explanation, the district court was free to adopt that information

as its findings.   E.g., United States v. Vital, 68 F.3d 114, 120

(5th Cir. 1995).



                                                           AFFIRMED




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