United States of America, Plaintiff-appellee, v. Ruben Jimenez-jaimes, Defendant-appellant, 125 F.3d 859 (9th Cir. 1997)

MEMORANDUM^* 

Ruben Jimenez-Jaimes appeals his sentence for possessing false alien registration receipt cards and being an illegal alien in possession of a firearm. We affirm.

The district court calculated Jimenez-Jaimes' sentence for illegal firearms possession pursuant to U.S.S.G. 2K2.1(c) (1) (A), which provides that if a firearm is used in the commission of another offense, the court shall apply the offense level for the other offense if the resulting offense level is greater. Jimenez-Jaimes used the firearm in the commission of an aggravated assault. Because the offense level for aggravated assault is greater than for illegal firearms possession, the district court applied the offense level for aggravated assault.

Jimenez-Jaimes contends that the district court erred in applying the offense level for aggravated assault because he was previously convicted in state court on assault charges arising from the same conduct. We disagree. Jimenez-Jaimes' prior state conviction does not bar the application of section 2K2.1(c) (1) (A). See United States v. Mun, 928 F.2d 323, 323-24 (9th Cir. 1991) (construing former U.S.S.G. § 2K2.1(c) (2), predecessor to U.S.S.G. § 2K2.1(c) (1) (A)).

Jimenez-Jaimes also contends that the district court should have departed downward on account of his prior state conviction. "We lack jurisdiction to review a district court's discretionary refusal to depart downward from the Guidelines." See United States v. Webster, 108 F.3d 1156, 1158 (9th Cir. 1997) (citation omitted).

AFFIRMED.