United States v. Netter , 76 F. App'x 554 ( 2003 )

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                                                       United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS       September 24, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30138
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY NETTER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 02-CR-65-1
--------------------
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Gregory Netter appeals the sentence imposed following his
guilty-plea conviction for being a felon in possession of a firearm
in violation of 18 U.S.C. § 922(g)(1).   He argues that the district
court abused its discretion in relying on impermissible factors in
its decision to depart upward due to the inadequacy of Netter’s
criminal history category.   The district court did not abuse its
discretion in considering three prior convictions for which Netter
did not receive any criminal history points due to their remoteness
*
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this opinion should not be published and is not precedent except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.
in time.   See U.S.S.G. § 4A.13(a)(policy statement); United States
v. Harrington,

114 F.3d 517

, 520 (5th Cir. 1997).                     The district
court did not abuse its discretion in considering that Netter had
a pending charge for possession of marijuana at the time that he
committed the instant offense.                 See U.S.S.G. § 4A1.3(d).                The
district   court      also   considered        Netter’s    history        of    domestic
violence and his numerous misdemeanor and felony charges which did
not result in convictions.             Although we have not addressed the
subject, three other circuits have held that a district court may
rely on conduct underlying dissimilar unadjudicated offenses.                          See
United States v. Cox,

299 F.3d 143

, 147 (2d Cir. 2002); United
States v. Brewster,

127 F.3d 22

, 26 (1st Cir. 1997); United States
v. Schweihs,

971 F.2d 1302

, 1319-20 (7th Cir. 1992).                            However,
because    the    district      court’s       other    reasons     were    valid       and
sufficient       to   support    its   upward         departure,    any        error   in
consideration of these factors was harmless.                  Williams v. United
States,

503 U.S. 193