United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41357
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GLEN BOLIVER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:03-CR-15-1
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Glen Boliver appeals his 235-month sentence for con-
spiring to manufacture methamphetamine. He contends that the
district court erred by (1) attributing 10 pounds (4.3 kilograms)
of methamphetamine to him; (2) adjusting his offense level for
possession of a firearm; (3) attributing one criminal-history point
for a theft conviction; and (4) declining to depart downward
*
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that this opinion should not be published and is not precedent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.
because a conviction for driving with a suspended license, which
resulted in one criminal-history point, overrepresented the
seriousness of Boliver’s criminal history.
Any error in the attribution of 10 pounds of metham-
phetamine was harmless. There was sufficient evidence in the
record to support attribution of at least two kilograms of
methamphetamine, which together with the 3.2 grams of cocaine he
possessed, placed Boliver at base offense level 34, the same base
offense level applicable to 10 pounds. U.S.S.G. § 2D1.1(c)(3); see
United States v. Narviz-Guerra, 148 F.3d 530, 537-38 (5th Cir.
1998).
The evidence supported the adjustment for possession of
a firearm. James Helton’s testimony indicated that Boliver
possessed a firearm during a drug-related confrontation. See
United States v. Eastland, 989 F.3d 760, 770 (5th Cir. 1993);
U.S.S.G. § 2D1.1(b)(1).
The district court’s comments at sentencing did not
indicate that the district court was unaware of its discretion to
depart downwardly based on possible overrepresentation of the
seriousness of Boliver’s criminal history. We therefore lack
jurisdiction to consider whether the district court erred by
declining to depart. United States v. Landerman, 167 F.3d 895, 899
(5th Cir. 1999).
We need not address Boliver’s contention regarding the
one criminal history point assigned to his theft offense -- any
2
error regarding the assignment of that point would be harmless, as
Boliver would remain in criminal history category III. See Narviz-
Guerra, 148 F.3d at 537-38.
AFFIRMED.
3