               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 96-21131
                         Conference Calendar



UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee,


versus

ANTHONY MICHAEL SMITH,

                                          Defendant-Appellant.


                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. H-96-CR-12-1
                        - - - - - - - - - -
                          August 15, 1997
Before KING, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

PER CURIAM:*

     Anthony Michael Smith appeals his conviction and sentence

for conspiracy to possess, with intent to deceive, and possession

with intent to pass one or more counterfeit securities.       Smith

argues that the district court erred in failing to enter a

downward departure based on his substantial assistance to

authorities pursuant to U.S.S.G. § 5K1.1.      Smith’s sole

contention is that the Government’s refusal to move for a § 5K1.1

     *
        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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
                          No. 96-21131
                              - 2 -

downward departure was unfair.   Because Smith has not alleged

that the Government’s failure to file a § 5K1.1 motion was due to

an unconstitutional motive, this claim is without merit.    See

Wade v. United States, 504 U.S. 181, 186 (1992).

     Further, Smith argues that the district court miscalculated

the loss attributable to him under U.S.S.G. § 2F1.1.   Smith’s

first point of error under this argument is that the district

court took into account checks drawn on McFall & Sartwelle and

Centex accounts that were not alleged in the indictment.   This

argument is without merit because the district court has latitude

to consider such under the Sentencing Guidelines.    See U.S.S.G.

§§ 2F1.1, 1B1.3(B); see also United States v. Cryer, 925 F.2d 828

(5th Cir. 1991).

     Smith’s second point of error is that there is insufficient

evidence to show that he is responsible for passing the McFall &

Sartwelle and Centex checks.   Inasmuch as Smith did not present

evidence to rebut the Government’s evidence, nor statements in

his presentence report thereto, the court’s consideration of the

McFall & Sartwelle and Centex checks was plausible in light of

the record read as a whole.    United States v. Watson, 966 F.2d

161, 162 (5th Cir. 1992); see also United States v. Gray, 105

F.3d 956, 969 (5th Cir.) cert. denied, 117 S. Ct. 1326 (1997).

Therefore, the court did not commit clear error in including

those checks in its calculation of the loss attributable to
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                               - 3 -

Smith.   United States v. Humphrey, 104 F.3d 65, 71 (5th Cir.

1997).

    AFFIRMED.
