IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40092 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDWARDO FLORES,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. M-96-CR-81-1 - - - - - - - - - - December 3, 1997 Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Edwardo Flores appeals his conviction and sentence for

conspiracy and possession with intent to distribute marijuana.

(a)(1) and 846. Flores’ claim of insufficient

evidence to show possession with intent to distribute is a

challenge to the credibility of eyewitness testimony. This court

may not substitute its credibility assessments for those of the

jury. United States v. Lopez,

(5th Cir.), cert.

denied,

(1996). This claim is without merit.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 97-40092 -2-

The evidence did not establish that Flores was less culpable

than others involved in the offense. The district court did not

clearly err in refusing to award a reduction in his offense level

pursuant to U.S.S.G. § 3B1.2. See United States v. Tremelling,

(5th Cir.), cert. denied,

(1995).

Flores’ argument that he should have received a downward

departure on the basis of his poor health and diminished mental

capacity is not reviewable on appeal. See United States v.

Leonard,

(5th Cir. 1995). Because the

district court did not misapply the sentencing guidelines, this

court lacks jurisdiction to review the court’s refusal to grant a

downward departure. Id.; United States v. DiMarco,

(5th Cir. 1995).

AFFIRMED.