                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAR 4 1997
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 96-1193
 v.                                               (D.C. No. 95-CR-424-S)
                                                         (D. Colo.)
 KEVIN JONES,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



      Kevin Jones (Mr. Jones) appeals his sentence entered following his plea of


      *
        This order and judgment is not binding precedent except under the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.
guilty to possession with intent to distribute approximately two grams of cocaine

base, in violation of 21 U.S.C. §§ 841(a)(1) (1994) and 841(b)(1)(C)(iii) (1994).



      On appeal, Mr. Jones contends (1) the district court abused its discretion by

refusing to depart downward from a criminal history category of VI by sentencing

him to the maximum sentence within the applicable guideline range, and in

sentencing him consecutively to his undischarged state sentence, and (2) it was

plain error for the district court to enhance his offense level two points for

possession of a firearm.



      Initially, Mr. Jones argues the district court erred in failing to depart

downward in setting his criminal history category. In his objections to the

presentence report, Mr. Jones asked the court to consider a downward departure

from a criminal history category of VI on the grounds that his criminal history

was "significantly less serious than that of most defendants in the same criminal

history category." However, "[a] discretionary refusal to depart downward is not

reviewable by this court unless it appears from the record the sentencing court

erroneously believed the Guidelines did not permit a downward departure."

United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995). "If the record is

ambiguous concerning the district court's awareness of its discretion to depart


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downward, we presume the court was aware of its authority." Id. The record

indicates Mr. Jones asked the court to consider a downward departure or, in the

alternative, to sentence him at the low end of the guideline range, which would

have been approximately equivalent to the midpoint of the applicable guideline

range if Mr. Jones' criminal history category had been V rather than VI. Upon

review of the record, we presume the court knew of its authority to depart

downward; thus we lack jurisdiction to consider this allegation of error.



      Mr. Jones also contends the district court abused its discretion in

sentencing him to 96 months imprisonment, the maximum sentence under the

applicable guideline range of 77-96 months. Although he acknowledges "the

Level VI Criminal History Category technically and linguistically applies" to him,

he argues the district court impermissibly relied upon his criminal history by

sentencing him to the maximum applicable sentence. However, unless the

sentencing range exceeds twenty-four months, the district court need not

explicitly state its reasons for imposing sentence at a particular point within the

applicable guideline range. 18 U.S.C. § 3553(c) (1994); United States v. Garcia,

919 F.2d 1478, 1482 (10th Cir. 1990). Therefore, we will not review the reasons

underlying a district court’s decision to impose a sentence at a particular point

within the proper guideline range unless it implicates 18 U.S.C. § 3742(a)(1) or


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(2) as illegal or an improper application of the sentencing guidelines,

respectively. 1 Garcia, 919 F.2d at 1482. Mr. Jones does not contend his sentence

at the high end of the guideline range was in violation of the law or an incorrect

application of the sentencing guidelines. Therefore, we decline to review this

claim.



         Next, Mr. Jones asserts the district court abused its discretion in setting his

sentence to run consecutively to his undischarged state sentence. 2 At sentencing,

the district court mistakenly believed Mr. Jones' federal sentence must run

consecutively to his undischarged term in Colorado pursuant to U.S.S.G.


       18 U.S.C. § 3742(a) governs a defendant's right to appeal a sentence
         1

imposed by a federal court. Garcia, 919 F.2d at 1470. It provides that a
defendant may appeal a sentence only if it:

               (1) was imposed in violation of law;
               (2) was imposed as a result of an incorrect application of the
         sentencing guidelines; or
               (3) is greater than the sentence specified in the applicable
         guideline range ...; or
               (4) was imposed for an offense for which there is no
         sentencing guideline ....

18 U.S.C. § 3742(a) (1994). Only subsections (1) and (2) apply to sentences
falling within the guidelines.


        On October 30, 1995, Mr. Jones was sentenced to four years in the
         2

custody of Colorado Department of Corrections on unrelated drug charges. On
November 5, 1995, he was arrested on the present charges.


                                            -4-
§ 5G1.3(a) (1995). 3 Although § 5G1.3(a) mandates consecutive sentences in this

case, 18 U.S.C. § 3584(a) (1994) provides "the terms may run concurrently or

consecutively." We previously recognized this conflict between the sentencing

guidelines and the statute in United States v. Shewmaker, 936 F.2d 1124 (10th

Cir. 1991), cert. denied, 502 U.S. 1037 (1992). "In Shewmaker, we held that the

guideline is 'reconcilable with 18 U.S.C. § 3584(a) because § 5G1.3 does not

preclude a court from departing from the Guidelines and sentencing

concurrently.'" United States v. Mihaly, 67 F.3d 894, 896 (10th Cir. 1995)

(quoting Shewmaker, 936 F.2d at 1127). Thus, the district court possessed

discretion to sentence Mr. Jones to concurrent sentences and the court's

statements to the contrary were clear error. However, the error was harmless and

no remand for resentencing is necessary, because the court made it clear it did not

believe in "twofers" and would sentence Mr. Jones consecutively in any event.

See United States v. Medina-Estrada, 81 F.3d 981, 987 (10th Cir. 1996) (no

remand necessary when court made it clear at sentencing that sentence would be

the same regardless of the error). The district court stated the state crime "was a

totally separate and distinct criminal incident to the one here involved.... He was


      3
         U.S.S.G. § 5G1.3(a) provides: "If the instant offense was committed ...
after sentencing for, but before commencing service of, [an undischarged] term of
imprisonment, the sentence for the instant offense shall be imposed to run
consecutively to the undischarged term of imprisonment."


                                         -5-
sentenced for that [state] crime. I see no reason whatsoever that he should be

given a concurrent sentence for that and this." Any other result in this situation

would be a waste of judicial resources.



      Finally, Mr. Jones argues the district court erred in enhancing his offense

level for possession of a firearm by two points, pursuant to U.S.S.G.

§ 2D1.1(b)(1). Mr. Jones admits he failed to object to the enhancement in the

district court. Therefore, we review solely for plain error. United States v.

Richardson, 86 F.3d 1537, 1554 (10th Cir.), cert. denied, 117 S. Ct. 588 (1996).

Whether Mr. Jones possessed a firearm within the meaning of § 2D1.1(b)(1) is a

question of fact. See United States v. Earls, 42 F.3d 1321, 1326 (10th Cir. 1994)

(district court’s factual finding defendant possessed a firearm within the meaning

of § 2D1.1(b)(1) not clearly erroneous), cert. denied, 115 S. Ct. 1800 (1995).

"'[f]actual disputes do not rise to the level of plain error.'" Richardson, 86 F.3d at

1554 (quoting United States v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994), cert.




                                          -6-
denied, 115 S. Ct. 1117 (1995)). Therefore, Mr. Jones' argument must fail. 4



      AFFIRMED.



                                       Entered for the Court


                                       WADE BRORBY
                                       United States Circuit Judge




      4
         We note that in his plea agreement, Mr. Jones stipulated the passenger in
the vehicle with him at the time of his arrest had a firearm in his possession
which the passenger placed under the seat of the car when the law enforcement
officers stopped them, and that the officers found a .38 caliber pistol in the trunk
of the vehicle. In addition, Mr. Jones stipulated to the two-level enhancement
pursuant to § 2D1.1(b)(1).


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