IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20544
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARL GEAN GIVENS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-99-CR-410-1
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February 21, 2003
Before BARKSDALE, DeMOSS and BENAVIDES, CIRCUIT JUDGES.
PER CURIAM:*
Karl Gean Givens appeals his conviction and sentence following
pleading guilty to being a felon in possession of a firearm in
violation of 18 U.S.C § 922(g)(1). He argues that he was
improperly denied a downward departure and that Application Note 2
following U.S.S.G. § 5G1.3 is unconstitutional because it states
that courts should credit time served on undischarged state
*
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that this opinion should not be published and is not precedent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.
sentences for related offenses but is silent as to crediting fully
discharged state sentences for related offenses.
We need not reach the constitutional issue because Givens
requested only a downward departure. There is no evidence that the
district court mistakenly believed it could not depart. Therefore,
the district court’s discretionary decision not to award a downward
departure is not reviewable. See United States v. Landerman, 167
F.3d 895, 899 (5th Cir. 1999).
Givens also argues that the fact that his firearms were not
manufactured in Texas and therefore traveled in and affected
interstate commerce was legally insufficient to support the
interstate commerce nexus required by 18 U.S.C. § 922(g)(1). This
claim is foreclosed by United States v. Daugherty, 264 F.3d 513,
518 (5th Cir. 2001), cert. denied, 534 U.S. 1150 (2002). The
judgment of the district court is AFFIRMED.
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