UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________

No. 98-30257 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HECTOR NUNEZ

Defendant-Appellant.

*********************

Consolidated with

No. 99-30013 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARMITCHELL DAVIDSON,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 97-CR-50042-2 USDC No. 97-CR-50042-6

September 22, 1999 Before JOLLY, SMITH, and BARKSDALE, Circuit Judges.

PER CURIAM:1

Hector Nunez and Armitichell Davidson appeal the sentences

imposed (each received a substantial downward departure to the

mandatory minimum) following their guilty plea convictions for

conspiracy to distribute cocaine base and cocaine, in violation of

. They maintain that the district court erred by

refusing to depart downward, pursuant to U.S.S.G. § 5K1.1, below

the 120 months mandatory minimum sentence.2

Nunez also contends that the Government waived the contention

that the district court erred initially departing downward to a

prison term of only 30 months. The Government timely filed, and

the district court timely acted upon, a FED. R. CRIM. P. 35(c) motion

to correct that initial sentence. See United States v. Bridges,

(5th Cir. 1997); United States v. Gonzalez,

(5th Cir. 1998).

For both Nunez and Davidson, the district court determined

properly that it was not authorized to depart below the mandatory

minimum because the Government had not requested such a departure

either in the defendants’ plea agreements or in their § 5K1.1

1 Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 2 The Government’s motion to strike statements of fact in Davidson’s reply brief that lack record support, together with argument based on such statements, is GRANTED; its motions for oral argument are DENIED.

- 2 - motions. Melendez v. United States,

(1996). Because the district court did not violate the law in

imposing the sentences, the extent of the downward departures may

not be challenged on appeal. See United States v. Alvarez,

(5th Cir. 1995). (In any event, the contentions regarding

more lenient sentences received by codefendants are meritless. See

United States v. McKinney,

(5th Cir.) cert.

denied,

, 903, 970 (1995).)

The sentences of Nunez and Davidson are

AFFIRMED.

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