* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### NOV 3 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.OSCAR GUSTAVO NUNEZDURAN, also known as Oscar Gustavo Duran-Nunez, also known as Oscar Duran,

Defendant-Appellant. No. 97-1347 (D. Ct. No. 97-CR-101-B) (D. Colo.)

ORDER AND JUDGMENT *

Before TACHA , HENRY , and MURPHY , Circuit Judges. Defendant Oscar Gustavo Nunez-Duran appeals an orde r of the district court sentencing him to a term of forty-six months in prison followed by three years of supervised release. He also appeals the c ourt’s denial of his motion to reconsider the sentence. The imposed sentence resu lted from defendant’s plea of guilty to violating 8 U.S.C. § 1326(a) and (b)(2) b y reentering the United States2

after having previously been deported subsequent to an aggravated felony conviction. First, defendant argues that the district court err ed in refusing to grant his motion for downward departure. He claims that the sentencing court impermissibly “traded” its inclination to grant def endant’s motion for a one level reduction in the criminal history category for the government’s proposed § 5K1.1 sentence reduction recommendation. Second, defendant asserts that the use of the same prior convictions to calculate both the de fendant’s criminal history category and the base offense level constitutes a v iolation of the multiple punishment clause of the Fifth Amendment to the Uni ted States Constitution. We affirm. I. Defendant Nunez-Duran was involved in a series of drug-related incidents in Oregon during 1995 and 1996. While serving his sentence on those convictions, defendant received a final deportation order from the Immigration and Naturalization Service and voluntarily left the United States in July of 1996 in lieu of being deported. In January of 1997, def endant was arrested in Denver, Colorado on a drug-related charge. On motion of th e government, the district court dismissed the federal criminal complaint issu ed in that incident after the return of the indictment in this matter. Defendantpled guilty to the charge of3

reentering the United States after having been depo rted subsequent to an aggravated felony conviction in violation of 8 U.S. C. § 1326(a) and (b)(2). The plea agreement provided that in exchange for defend ant’s cooperation in the investigation of another individual, the governmentwould recommend a sentence at the low end of the applicable guideline range. The district court sentenced Nunez-Duran to a term of forty-six months in prison

. II. At the sentencing hearing, defendant sought a downw ard departure from the Sentencing Guideline Criminal History Category IV on grounds that the category overstated the seriousness of his criminal history since he was only a low-level, drug-dependent substance dealer. The go vernment moved for a sentence reduction pursuant to § 5K1.1 of the Unite d States Sentencing Guidelines, based on Defendant’s substantial assist ance. The district court granted the government’s motion but denied the defe ndant’s motion for an additional downward departure. Defendant argues on appeal that the court should have considered these reductions separately and erred in refusing to grant a further departure from the already reduced sentence. It is well settled in th is circuit that we have no jurisdiction to review the district court’s discret ionary refusal to depart downward. See, e.g. , United States v. Castillo , 140 F.3d 874, 888 (10th Cir.4

1998); United States v. Banta , 127 F.3d 982, 983 n.1 (10th Cir. 1997); United States v. Belt , 89 F.3d 710, 714 (10th Cir. 1996); United States v. BarreraBarron , 996 F.2d 244, 245 (10th Cir. 1993). No duty compels the district court to consider separately the government’s substantial assistance motion and any downward departure motion made by defendant. The district court had full discretion in deciding whether to depart downward. This was not affected by the government’ s motion. Therefore, we dismiss this portion of the appeal. III. Defendant also asserts on appeal that the trial cou rt erred in denying his motion to reconsider his sentence because the distr ict court used the same prior convictions to calculate both the criminal history category and the base offense level. Defendant claims that the use of a prior co nviction in not one, but two, sentencing calculations constitutes multiple punish ment in violation of the Fifth Amendment Double Jeopardy Clause. We find that thi s claim is without merit. The Double Jeopardy Clause “protects a criminal d efendant from multiple prosecutions and from multiple punishments for the same conduct.” United States v. Overstreet , 40 F.3d 1090, 1098 (10th Cir. 1994) (citing United States v. Dixon , 509 U.S. 688, 695-96 (1993)). However, the multiple punishment prong of the Clause “does no more than prevent the senten cing court from prescribing5

greater punishment than the legislature intended.” Missouri v. Hunter , 459 U.S. 359, 366 (1983). The district court sentenced defe ndant to forty-six months imprisonment, which was well within the range autho rized by 8 U.S.C. § 1326(b)(2). “Calculation under the Federal Sentenc ing Guidelines of the proper sentence within the statutory range established by Congress . . . does not constitute multiple punishment.” United States v. Alvarez , 914 F.2d 915, 920 (7th Cir. 1990), superceded on other grounds by Stinson v. United States , 508 U.S. 36 (1993); see also United States v. Saunders , 973 F.2d 1354, 1365 (7th Cir. 1992); United States v. Amis , 926 F.2d 328, 329-30 (3d Cir. 1991); cf. Witte v. United States , 515 U.S. 389, 399 (1995) (“[U]se of evidence of r elated criminal conduct to enhance a defendant’s sentence for a separate crime within the authorized statutory limits does not constitute punishment . . . within the meaning of the Double Jeopardy Clause.”) (emphasis added). Therefore, we hold that the district court did not err in refusing to reconsider the defendant’s sentence and AFFIRM. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge