UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ___________________________

No. 98-41595 Summary Calendar ___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

KEVIN D. CLAYTON,

Defendant-Appellant.

__________________________________________________

Appeals from the United States District Court for the Southern District of Texas USDC No. C-98-CR-244 ____________________________________________________

September 20, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Kevin D. Clayton has appealed the sentence he received after

he pleaded guilty to possessing marijuana with intent to

distribute it. We AFFIRM.

The resolution to Clayton's appeal turns on whether the

district court erroneously concluded that it could not depart

downward under U.S.S.G. § 5K2.0, after Clayton received leniency

pursuant to U.S.S.G. § 5C1.2, the "safety-valve" provision.

Section § 5K2.0 provides, in part, for a departure if there

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. is a "mitigating circumstance of a kind, or to a degree, not

adequately taken into consideration . . . in formulating the

guidelines." "This court can review a district court's refusal

to depart from the guidelines only if the district court based

its decision upon an erroneous belief that it lacked the

authority to depart." United States v. Valencia-Gonzales,

(5th Cir. 1999), petition for cert. filed, (U.S.

July 8, 1999) (No. 99-5249) (citation and quotation marks

omitted). Furthermore, there must be something in the record

that indicates that the district court held such an erroneous

belief; the district court's summary denial without explanation

is insufficient.

Accordingly, this court lacks

"jurisdiction to review the district court's determination that a

departure was not warranted on the facts of [the defendant's]

case." United states v. Carmouche,

, 1018 (5th Cir.

1988).

Clayton asserts that the district court found that his

mental capacity, family circumstances, and unique cooperation

with the Government justified a departure under § 5K2.0.

However, the sentencing transcript does not support these

assertions. The district court correctly held that there could

be no departure under § 5K1.1 for substantial assistance to the

Government, because the Government had not moved therefor. See

United States v. Solis,

(5th Cir. 1999),

petition for cert. filed, (U.S. June 3, 1999) (No. 98-9623). The

court also was aware "that § 5K2.0 does not afford district

courts any additional authority to consider substantial assistance departures without a government motion." Id. at 227.

Upon inquiry by the court, neither the probation officer nor

Clayton's counsel was able to show that there were "mitigating

circumstances" that justified a § 5K2.0 downward departure.

Clayton's appeal lacks merit because the district court

determined that a departure was not warranted on the facts of his

case, a ruling that this court lacks jurisdiction to review. See

Carmouche, 138 F.3d at 1018.

AFFIRMED.