                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 22 1998
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-6001
 v.
                                                   (D.C. No. 97-CR-017)
                                                       (W.D. Okla.)
 ANTHONY EUGENE BOYD,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BALDOCK, EBEL and MURPHY, Circuit Judges.


      Anthony Eugene Boyd (“Boyd”) pleaded guilty to conspiracy to distribute

and distribution of cocaine base (crack), in violation of 21 U.S.C. § 846. (R. I

#160 at 1.) His presentence report recommended a sentence between 292 months

and 365 months, based on an offense level of 35 and a career offender Category

VI criminal history. (R. II at 2-3.) However, in recognition of Boyd’s substantial



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument. This Order and Judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
assistance, the government moved for a downward departure pursuant to U.S.S.G.

§ 5K1.1. (Aplnt’s App. 1.) The district court granted the motion, reduced Boyd’s

offense level by five levels, and sentenced Boyd to 175 months of imprisonment

to be followed by a five-year term of supervised release. (R. II at 3-4, 7.) Boyd

appeals his sentence, arguing that he was improperly classified as a career

offender and that the district court made an insufficient departure.

      Boyd was classified as a career offender based on two California state

convictions for distributing controlled substances for which he received sentences

of three years of imprisonment. (PSR at 7-8.) On appeal, Boyd argues that he

was improperly sentenced as a career offender because California considered the

predicate convictions misdemeanors, not felonies. Because he failed to raise this

argument in the district court, we review only for plain error. See United States

v. Gilkey, 118 F.3d 702, 704 (10th Cir. 1997) (noting that while failure to present

issues in the district court generally results in waiver, a narrow exception permits

plain error review of legal questions regarding the Sentencing Guidelines).

      U.S.S.G. § 4B1.1 provides that a defendant is a career offender if he or she

has two or more prior felony convictions for a “crime of violence” or a

“controlled substance offense.” A “controlled substance offense” is “an offense

under federal or state law, punishable by imprisonment for a term exceeding one

year, that prohibits the manufacture, import, export, distribution, or dispensing of


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a controlled substance . . . or the possession of a controlled substance . . . with

intent to manufacture, import, export, distribute, or dispense.” U.S.S.G.

§ 4B1.2(b) (1997). The commentary to § 4B1.2 states that a “‘[p]rior felony

conviction’ means a prior adult federal or state conviction for an offense

punishable by death or imprisonment for a term exceeding one year, regardless of

whether such offense is specifically designated as a felony and regardless of the

actual sentence imposed.” U.S.S.G. § 4B1.2 cmt. n.1 (1997) (emphasis added).

Thus, it was not plain error for the district court to conclude that, for federal

sentencing purposes, if a controlled substance offense is punishable by

imprisonment for more than one year, it is a felony even if it is considered a

misdemeanor in the jurisdiction imposing the conviction. See United States v.

Baker, 961 F.2d 1390, 1392 (8th Cir. 1992); United States v. Raynor, 939 F.2d

191, 194-95 (4th Cir. 1991); United States v. Davis, 932 F.2d 752, 763 (9th Cir.

1991); United States v. Whyte, 892 F.2d 1170, 1172-73 (3d Cir. 1989).

      Boyd also contends that in light of the government’s strong § 5K1.1

motion, the district court incorrectly applied the Guidelines by not downwardly

departing more than five offense levels. However, a complaint about the degree of

downward departure, even if characterized as a misapplication of the Sentencing

Guidelines, is not reviewable on appeal. See United States v. McHenry, 968 F.2d




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1047, 1049 (10th Cir. 1992); United States v. Bromberg, 933 F.2d 895, 897 (10th

Cir. 1991).

      Boyd’s sentence is AFFIRMED.

      The mandate shall issue forthwith.

                                     ENTERED FOR THE COURT



                                     David M. Ebel
                                     Circuit Judge




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