               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-41070
                        Conference Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JAMES LEE POLEDORE,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                      USDC No. 01-CR-23-ALL
                       --------------------
                          August 21, 2002

Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges.

PER CURIAM:*

     James Lee Poledore appeals his sentence following his

guilty-plea conviction of possession of a firearm during and in

relation to drug-trafficking offense, in violation of 18 U.S.C.

§ 924(c), and possession of marijuana with intent to distribute,

in violation of 21 U.S.C. § 841(a).   Citing U.S.S.G. § 5H1.4,

p.s., Poledore contends that the district court erred in denying




     *
        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that this opinion should not be published and is not precedent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. 01-41070
                                  -2-

his motion for a downward departure, based on his allegedly

severe medical conditions.

     “This court can review a district court’s refusal to depart

[downward] 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,

172 F.3d 344, 346 (5th Cir. 1999) (citation omitted).    This court

lacks jurisdiction if the district court’s refusal to depart

downward is based on its determination that departure is not

warranted on the facts of the case.    United States v. Palmer,

122 F.3d 215, 222 (5th Cir. 1997).

     The transcript of Poledore’s sentencing hearing reflects

that the district court was well aware that it had the legal

authority to depart and that the court refused to depart on the

basis of the facts before it.    Accordingly, this court is without

jurisdiction over the appeal, and the appeal is DISMISSED.
