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.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CR-410-1 -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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

(g)(1). This

claim is foreclosed by United States v. Daugherty,

(5th Cir. 2001), cert. denied,

(2002). The

judgment of the district court is AFFIRMED.

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