United States v. Netter

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 24, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-30138
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY NETTER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 02-CR-65-1
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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

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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, 204 (1992); United States v. Kay, 83 F.3d 98,
101 (5th Cir. 1996).
AFFIRMED.

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