IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-41358 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERNESTO HERNANDEZ-DIAZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-99-CR-469-1 -------------------- August 14, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Ernesto Hernandez-Diaz appeals the district court’s refusal

to grant a downward departure for mental incapacity, pursuant to

U.S.S.G. § 5K2.13. Hernandez argues that the district court

erroneously concluded it lacked the authority to grant such a

departure.

We have jurisdiction to review a district court’s decision

not to depart downward from the applicable guideline range only

if the district court’s decision was based upon an erroneous

belief that it lacked the authority to depart. See United States

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-41358 -2-

v. DiMarco,

(5th Cir. 1995). In addition,

“something in the record must indicate that the district court

held such an erroneous belief.” United States v. Landerman,

(5th Cir. 1999).

However, a review of the record persuades us there is no

evidence that the district court held such an erroneous belief.

Instead, it appears that the district court concluded such a

departure was not warranted based on the facts. Therefore, we

lack jurisdiction, and this appeal is DISMISSED.