                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         February 2, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                             No. 03-20387
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

PEDRO MADRIGAL-FERREIRA,

                                     Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. H-02-CR-669-ALL
                        --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Pedro Madrigal-Ferreira appeals his sentence following his

guilty plea conviction of illegal reentry.    Madrigal first argues

that the district court erred in considering higher offense

levels, as opposed to higher criminal history categories, when it

departed upward based upon a dismissed count pursuant to U.S.S.G.

§ 5K2.21.   This court has not addressed the issue whether a

sentencing court must depart horizontally when departing pursuant


     *
        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that this opinion should not be published and is not precedent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.
                             No. 03-20387
                                  -2-

to § 5K2.21; thus, Madrigal has not shown that the district court

plainly erred in so doing.     See United States v. Hull, 160 F.3d

265, 271-72 (5th Cir. 1998).

     Second, Madrigal asserts that, because the written judgment

does not conform to the court’s oral pronouncement of the

sentence, this case must be remanded to the district court for it

to amend the written judgment by striking the condition of

release that Madrigal not possess any other dangerous weapon.

This court recently addressed this same issue and rejected it.

See United States v. Torres-Aguilar, ___ F.3d ___, No. 03-40055,

2003 WL 22853762 (5th Cir. Dec. 3, 2003).    Accordingly, the issue

is foreclosed.

     AFFIRMED.
