                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             NOV 14 1997
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                          No. 96-4186
 v.                                                   (D.C. No. 95-CR-187)
                                                        (District of Utah)
 THOMAS DONALD JARAMILLO,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before BALDOCK, MCKAY and LUCERO, Circuit Judges.


      Thomas Donald Jaramillo, appearing pro se, appeals from his conviction

under 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Construing Jaramillo’s appeal

liberally, we find that he raises two grounds for appeal: (1) the district court

inappropriately considered Jaramillo’s 1973 conviction for burglary in the second

degree; and (2) the district court failed to calculate his offense level and criminal

history categories correctly, resulting in an erroneous sentence. We affirm.


      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors 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.
                                            I

      On September 14, 1995, a federal grand jury charged Thomas Jaramillo in a

three-count indictment. Count One charged Jaramillo, having been convicted of a

crime punishable by imprisonment for more than one year, with being in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2);

Counts Two and Three charged him with distribution of cocaine in violation of 21

U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Pursuant to a plea agreement, Jaramillo

entered a plea of guilty to Charge One in return for the government’s agreement

to dismiss Counts Two and Three.

      Jaramillo was sentenced on November 5, 1996. Prior to the sentencing

hearing, Jaramillo moved the district court to adjust his sentence downward

pursuant to 18 U.S.C. § 3553(b) and U.S. Sentencing Guidelines §§ 5H1.6 and

5K2.0. The district court denied the defendant’s motion for downward departure.

At the sentencing hearing, the district court sustained all of Jaramillo’s objections

to the presentence report. The district court sentenced Jaramillo to 16 months in

prison, followed by three years of supervised release. Sixteen months is the

maximum sentence for the defendant’s offense level (11) and criminal history

category (II). See U.S.S.G. ch. 5, pt. A.




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                                          II

       The appellant claims that the district court erroneously considered his prior

convictions in the determination of his sentence. Only two of the appellant’s

previous convictions played any role in this case: (1) a 1973 conviction for

burglary in the second degree, a felony; and (2) a 1988 conviction for theft, a

misdemeanor. The 1973 conviction did not factor into the determination of the

appellant’s sentence. Rather, that conviction appropriately served as the predicate

felony under 18 U.S.C. § 922(g)(1), providing the factual support for the

defendant’s plea of guilty. The 1988 conviction did affect the appellant’s

sentence. Under § 4A1.1(b) of the U.S. Sentencing Guidelines, the 1988

conviction elevated the appellant to criminal history category II. See U.S.S.G. ch.

5, pt. A.

       Contrary to the appellant’s claim, the district court properly determined the

appellant’s base offense level at 14. See U.S.S.G. § 2K2.1(a)(6). The district

court then allowed a 3 level deduction for the appellant’s acceptance of

responsibility, arriving at an offense level of 11. See U.S.S.G. § 3E1.1. Using

the appellant’s correct criminal history category of II, the district court arrived at

a sentence of 16 months. Although 16 months is the highest allowable sentence

for the appellant’s offense level and criminal history category, the appellant’s




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claim that the district court erred in its determination of his sentence is without

merit.

         To the extent that we construe Jaramillo’s appeal as an appeal of the

district court’s decision to refuse a downward departure of Jaramillo’s sentence,

we do not have jurisdiction to review such a decision unless the trial court

“erroneously believed it lacked authority to depart.” United States v. Segien, 114

F.3d 1014, 1024 (10th Cir. 1997). The record does not reflect that the district

court based its decision on an erroneous belief that it lacked authority.

Accordingly, we affirm. The mandate shall issue forthwith.

                                         ENTERED FOR THE COURT



                                         Carlos F. Lucero
                                         Circuit Judge




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