* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfa vors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 22 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANTHONY EUGENE BOYD, Defendant-Appellant. No. 98-6001 (D.C. No. 97-CR-017) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL and MURPHY , Circuit Judges.
Anthony Eugene Boyd (“Boyd”) pleaded guilty to cons piracy to distribute and distribution of cocaine base (crack), in violat ion of 21 U.S.C. § 846. (R. I #160 at 1. ) His presentence report recommended a sentence be tween 292 months and 365 months, based on an offense level of 35 and a career offender Category VI criminal history. (R. II at 2-3. ) However, in recognition of Boyd’s substantial- 2 -

assistance, the government moved for a downward dep arture pursuant to U.S.S.G. § 5K1.1. (Aplnt’s App. 1. ) The district court granted the motion, reduced B oyd’s offense level by five levels, and sentenced Boyd to 175 months of imprisonment to be followed by a five-year term of supervised re lease. (R. II at 3-4, 7. ) Boyd appeals his sentence, arguing that he was improperl y classified as a career offender and that the district court made an insuff icient departure. Boyd was classified as a career offender based on t wo California state convictions for distributing controlled substances for which he received sentences of three years of imprisonment. (PSR at 7-8. ) On appeal, Boyd argues that he was improperly sentenced as a career offender becau se California considered the predicate convictions misdemeanors, not felonies. Because he failed to raise this argument in the district court, we review only for plain error. See United States v. Gilkey , 118 F.3d 702, 704 (10th Cir. 1997) (noting that w hile failure to present issues in the district court generally results in w aiver, a narrow exception permits plain error review of legal questions regarding the Sentencing Guidelines). U.S.S.G. § 4B1.1 provides that a defendant is a car eer offender if he or she has two or more prior felony convictions for a “cri me of violence” or a “controlled substance offense.” A “controlled subs tance offense” is “an offense under federal or state law, punishable by imprisonm ent for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of- 3 -

a controlled substance . . . or the possession of acontrolled substance . . . with intent to manufacture, import, export, distribute, or dispense.” U.S.S.G. § 4B1.2(b) (1997). The commentary to § 4B1.2 state s that a “‘[p]rior felony conviction’ means a prior adult federal or state co nviction for an offense punishable by death or imprisonment for a term exce eding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed.” U.S.S.G. § 4B1.2 cmt. n. 1 (1997) (emphasis added). Thus, it was not plain error for the district courtto conclude that, for federal sentencing purposes, if a controlled substance offe nse is punishable by imprisonment for more than one year, it is a felony even if it is considered a misdemeanor in the jurisdiction imposing the convic tion. See United States v. Baker , 961 F.2d 1390, 1392 (8th Cir. 1992); United State s v. Raynor , 939 F.2d 191, 194-95 (4th Cir. 1991); United States v. Davis , 932 F.2d 752, 763 (9th Cir. 1991); United States v. Whyte , 892 F.2d 1170, 1172-73 (3d Cir. 1989). Boyd also contends that in light of the government’ s strong § 5K1.1 motion, the district court incorrectly applied the Guidelines by not downwardly departing more than five offense levels. However, acomplaint about the degree of downward departure, even if characterized as a misapplication of the Sentencing Guidelines, is not reviewable on appeal. See United States v. McHenry , 968 F.2d- 4 -

1047, 1049 (10th Cir. 1992); United States v. Bromb erg , 933 F.2d 895, 897 (10th Cir. 1991). Boyd’s sentence is AFFIRMED. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge