United States v. Nelson Frias , 39 F.3d 391 ( 1994 )

PER CURIAM.

This case returns to us on the appeal of defendant Nelson Frias from a final judgment of the United States District Court for the Eastern District of New York, Arthur D. Spatt, Judge, sentencing him principally, following our limited remand in United States v. Concepcion, 983 F.2d 369 (2d Cir.1992) (“Concepcion ”), cert. denied, — U.S. -, 114 S.Ct. 163, 126 L.Ed.2d 124 (1993), to a total of 144 months’ imprisonment. In Concepcion, we rejected Frias’s contentions that both the federal Sentencing Guidelines (“Guidelines”) and the Double Jeopardy Clause barred consideration of his acquitted conduct in the calculation of his sentence under the Guidelines. See 983 F.2d at 391. However, in fight of the very substantial increase in penalty prescribed by the Guidelines as a result of consideration of that conduct, which we concluded was a factor the extent of which had not been adequately anticipated by the Sentencing Commission, we remanded to the district court to permit that court to decide whether or not to exercise its discretion to depart downward from the prescribed Guidelines imprisonment range. See id. at 389.

On remand, the district court exercised its discretion and departed downward from the prescribed range of 210-262 months, sentencing Frias to a total of 144 months’ imprisonment. We see no basis for Frias’s present contention that the district court failed to follow the directions this Court gave in Concepcion. We reject Frias’s renewed contention that the Double Jeopardy Clause barred consideration of his acquitted conduct in the calculation of his sentence for the reasons we stated in Concepcion, 983 F.2d at 391. And we reject Frias’s reliance on United States v. McCormick, 992 F.2d 437 (2d Cir.1993), for the proposition that Concepcion has been overruled, because in McCormick, unlike the present case, the conduct in question had already been used to calculate that defendant’s sentence in a prior prosecution.

We have considered all of Frias’s contentions on this appeal and have found them to be without merit. The judgment of the district court is affirmed.

OAKES, Senior Circuit Judge, concurs, in a separate opinion.