                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-3426
                                    ___________

United States of America,                *
                                         *
               Appellee,                 *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Ellen Leger,                             *
                                         * [UNPUBLISHED]
               Appellant.                *
                                    ___________

                            Submitted: May 3, 1999
                                Filed: May 21, 1999
                                     ___________

Before FAGG, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

      Ellen Leger appeals her conviction and sentence for knowingly using
intimidation with intent to prevent the testimony of a witness, in violation of 18
U.S.C. § 1512(b). We affirm.

       For reversal, Leger argues that an 8-level enhancement assessed against her
under U.S. Sentencing Guidelines Manual § 2J1.2(b)(1) (1998) ("causing or
threatening to cause physical injury to a person, or property damage, in order to
obstruct the administration of justice") amounts to double counting. “Double
counting occurs when one part of the Guidelines is applied to increase a defendant’s
punishment on account of a kind of harm that has already been fully accounted for by
application of another part of the Guidelines.” United States v. Hipenbecker, 115
F.3d 581, 583 (8th Cir. 1997) (citation and internal quotations omitted). We review
de novo the question of double counting under the Guidelines. See id. The
background commentary to section 2J1.2 indicates that the Guidelines provision
addresses a number of offenses of "varying seriousness" that involve the obstruction
of justice. The specific offense characteristics, which include the 8-level increase
here, are intended to “reflect the more serious forms of obstruction.” USSG § 2J1.2,
comment. (backg’d.). Thus we cannot say that Leger’s act of threatening physical
injury in order to obstruct justice was taken into consideration in calculating the base
offense level. Therefore, no impermissible double counting occurred.

        Leger also argues that she was entitled to a downward departure under USSG
§ 5K2.0 because her case falls outside the “heartland” of cases. The district court
applied the language of section 5K2.0, and simply chose not to depart under the facts
of this case. We lack jurisdiction to review such a discretionary decision. See United
States v. Correa, 167 F.3d 414, 417 (8th Cir. 1999).

      Finally, Leger raises ineffective-assistance claims, but we decline to address
them because such claims would be better addressed in a 28 U.S.C. § 2255
proceeding. See United States v. Santana, 150 F.3d 860, 863 (8th Cir. 1998).

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



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