No. 99-40635 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40635 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO AMADOR,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-98-CR-490-ALL -------------------- February 17, 2000

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

PER CURIAM:*

Arturo Amador appeals his guilty-plea conviction for

possession with intent to distribute heroin. He argues that the

district court erred in denying his request for a downward

departure on the basis that his criminal history category

overrepresented the seriousness of his past criminal conduct.

This court has jurisdiction to review the district court’s

refusal to depart downward because the court mistakenly believed

that it was bound to follow the guidelines and that the

guidelines did not permit a downward departure in this

circumstance. United States v. Harrison,

(5th

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40635 -2-

Cir. 1990).

Nevertheless, this court must affirm the district court’s

refusal to depart downward because Amador failed to state in the

district court and on appeal what portion of his criminal history

was overrepresented. The judgment of the district court is

AFFIRMED.