United States v. Hernandez-Diaz

* 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that this opinion should not be published and is not precedent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.
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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-99-CR-469-1
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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

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No. 99-41358
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v. DiMarco, 46 F.3d 476, 478 (5th Cir. 1995). In addition,
“something in the record must indicate that the district court
held such an erroneous belief.” United States v. Landerman, 167
F.3d 895, 899 (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.

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