* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 

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

### NOV 14 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

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

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 convict ion for burglary in the second degree; and (2) the district court failed to calcul ate his offense level and criminal history categories correctly, resulting in an erron eous sentence. We affirm.- 2 - I On September 14, 1995, a federal grand jury charged Thomas Jaramillo in a three-count indictment. Count One charged Jaramill o, 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 fo r the government’s agreement to dismiss Counts Two and Three. Jaramillo was sentenced on November 5, 1996. Priorto the sentencing hearing, Jaramillo moved the district court to adju st 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 m otion for downward departure. At the sentencing hearing, the district court susta ined all of Jaramillo’s objections to the presentence report. The district court sent enced Jaramillo to 16 months in prison, followed by three years of supervised relea se. 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.- 3 - II The appellant claims that the district court errone ously 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 in to the determination of the appellant’s sentence. Rather, that conviction appr opriately served as the predicate felony under 18 U.S.C. § 922(g)(1), providing the f actual support for the defendant’s plea of guilty. The 1988 conviction di d affect the appellant’s sentence. Under § 4A1.1(b) of the U.S. Sentencing Guidelines, the 1988 conviction elevated the appellant to criminal histo ry category II. See U.S.S.G. ch. 5, pt. A. Contrary to the appellant’s claim, the district cou rt 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 appe llant’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 o f 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 hist ory category, the appellant’s- 4 -

claim that the district court erred in its determin ation of his sentence is without merit. To the extent that we construe Jaramillo’s appeal a s an appeal of the district court’s decision to refuse a downward depa rture of Jaramillo’s sentence, we do not have jurisdiction to review such a decisi on 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 fo rthwith. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge