                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.
                                                No. 03-4043
TIMON JEROME MICHAUX, a/k/a Too
Short,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
     for the Western District of North Carolina, at Statesville.
              Richard L. Voorhees, District Judge.
                            (CR-00-47)

                      Argued: December 5, 2003

                      Decided: March 10, 2004

     Before NIEMEYER and TRAXLER, Circuit Judges, and
           Richard D. BENNETT, District Judge of the
     United States District Court for the District of Maryland,
                      sitting by designation.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Lyle Joseph Yurko, YURKO & OWENS, P.A., Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, OFFICE OF
THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
2                      UNITED STATES v. MICHAUX
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Appellant, Timon "Too Short" Michaux, appeals his 262-month
sentence imposed by the district court following his plea of guilty to
a single drug distribution charge. Having reviewed Michaux’s claims
and finding no reversible error, we affirm.

                                    I.

   Michaux pleaded guilty to one count of conspiracy to possess with
intent to distribute quantities of cocaine and cocaine base in violation
of 21 U.S.C.A. § 841 and § 846 (West 1999 & Supp. 2003). Accord-
ing to the Presentence Report ("PSR"), Michaux’s total offense level
was 37 and his total criminal history score was 23, placing him in
criminal history category VI.

   Among other things, the PSR assessed three criminal history points
against Michaux for a prior state-court conviction for assault with a
firearm on a police officer. Michaux objected to the three-point
assessment, arguing that the assault conviction was relevant conduct
and, therefore, not countable as criminal history points.* As a result,

   *Under Section 4A1.1 of the Sentencing Guidelines, criminal history
points are assigned to a defendant’s "prior sentence[s]." See United
States Sentencing Commission, Guidelines Manual ("U.S.S.G."),
§ 4A1.1 (2001). The guidelines define "prior sentence" as "any sentence
previously imposed . . . for conduct not part of the instant offense."
U.S.S.G. § 4A1.2(a)(1). Application Note 1 makes it clear that relevant
conduct is "part of the instant offense" for purposes of the criminal his-
tory calculation. See U.S.S.G. § 4A1.2, comment. (n.1). Relevant con-
duct includes "all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the offense of con-
viction, in preparation for that offense, or in the course of attempting to
avoid detection or responsibility for that offense." U.S.S.G.
§ 1B1.3(a)(1).
                      UNITED STATES v. MICHAUX                         3
Michaux contended, his criminal history score should be reduced by
three points from 21 to 18.

   A reduction of his criminal history score to 18 would still leave
Michaux in a criminal history category VI; however, Michaux also
objected to the PSR’s assignment of 11 criminal history points for
what Michaux referred to as "minor motor vehicle offenses" such as
driving on a revoked license. Supp. J.A. 2. In his objection, Michaux
contended that the assessment of 11 points overstated the seriousness
of his actual behavior and that he was entitled to a downward depar-
ture. See U.S.S.G. § 4A1.3 (explaining that a departure may be appro-
priate if the "criminal history category significantly over-represents
the seriousness of a defendant’s criminal history"). Michaux argued
that only one point should be assessed for lesser traffic offenses and
that a four-point cap should be applied. See U.S.S.G.
§ 4A1.1(c)(permitting a maximum of 4 points to be assigned for cer-
tain prior offenses). Thus, if the district court agreed with both of his
objections, Michaux’s criminal history score would be reduced from
21 to 10 points, and his criminal history category would be reduced
from category VI to category V.

   At sentencing, the district court rejected both of Michaux’s objec-
tions and adopted the findings of the PSR. The court sentenced
Michaux to 262 months’ imprisonment and five years of supervised
release. Michaux then filed this appeal.

                                   II.

   On appeal, Michaux presses his argument with regard to whether
the prior state-court assault conviction was properly included in the
calculation of his criminal history category. This court need not reach
the question of whether the district court should have considered
Michaux’s prior state-court conviction to be relevant conduct. Even
if Michaux’s prior conviction were considered relevant conduct and
the three criminal history points associated with the conviction were
excluded, Michaux would remain in the same criminal history cate-
gory and his sentence range would not change.

   Michaux concedes that a criminal history score of 18 would still
place him in criminal history category VI. However, he argues that he
4                      UNITED STATES v. MICHAUX
is nonetheless entitled to relief because the district court did not fully
consider his motion for a downward departure based on an overstate-
ment of his criminal history relating to his minor traffic offenses.
Michaux maintains that the district court, having already refused to
treat Michaux’s state-court conviction as relevant conduct, did not
consider the downward departure motion because such a departure, on
its own, would not have affected Michaux’s criminal history category.
Accordingly, Michaux argues that if we conclude that the state-court
assault conviction should be treated as relevant conduct rather than
criminal history, we should remand to give the district court another
chance to consider his motion for a downward departure based on an
overstatement of his criminal history.

   Michaux is correct that, in order for his criminal history category
to be reduced from VI to V, the court must find that his prior state-
court assault conviction was relevant conduct and that his criminal
history was overstated. However, contrary to Michaux’s assertion, the
district court did not fail to consider the question of whether
Michaux’s criminal history was overstated. In addressing Michaux’s
departure motion, the district court plainly stated:

     In this case the defendant has 21 criminal history points. So
     if the matter involved discounting traffic offenses, then they
     would have to come down considerably . . . to get the defen-
     dant to [category] V. But even though that may be the case,
     the court finds the probation officer accurately calculated
     the raw score of criminal history and the court sees no rea-
     son why the scoring overstates his criminal history. Conse-
     quently, the motion for departure will be denied.

J.A. 27-28 (emphasis added).

   The district court clearly rejected Michaux’s argument that the
inclusion of his traffic offenses overstated his criminal history and
denied Michaux’s request for a downward departure. Because the dis-
trict court understood that it had the discretion to depart downward on
the basis suggested by Michaux, the district court’s denial of his
departure motion is not appealable. United States v. Edwards, 188
F.3d 230, 238 (4th Cir. 1999) (noting that a sentencing court’s deci-
sion not to depart is not reviewable unless the court’s decision not to
                       UNITED STATES v. MICHAUX                          5
depart is based on a mistaken view that it lacks the authority to
depart). Thus, even if Michaux’s state-court assault conviction were
treated as relevant conduct and his criminal history reduced by three
points, Michaux’s criminal history category would not change, and
any error in that regard would be harmless. See Williams v. United
States, 503 U.S. 193, 203 (1992) (noting that a district court’s sen-
tencing error is subject to harmless error analysis and remand is not
required if "the error did not affect the district court’s selection of the
sentence imposed"); see also United States v. McCrary, 887 F.2d 485,
489 (4th Cir. 1989) (per curiam) (noting that error in calculating crim-
inal history category warrants remand only when possible sentencing
ranges are different). Accordingly, we affirm the judgment of the dis-
trict court.

                                                             AFFIRMED
