                            No. 98-51027
                                 -1-

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-51027
                         Summary Calendar



UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

versus

RODOLFO ESPINOZA-HERNANDEZ,

                                            Defendant-Appellant.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. SA-97-CR-43-ALL
                        - - - - - - - - - -

                            July 14, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Rodolfo Espinoza-Hernandez (Espinoza) appeals his sentence for

illegal reentry.    He argues that the district court erred in

determining that it was unable to depart under the extraordinary

circumstances of his case, as is permitted by Koon v. United

States, 518 U.S. 81, 106 (1996).

     This court has jurisdiction if a refusal to depart downward

was premised upon a mistaken conclusion that the guidelines do not

permit such a departure, but lacks jurisdiction if the refusal was


     *
        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that this opinion should not be published and is not precedent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. 98-51027
                                   -2-

premised on a determination that a departure was not warranted

under the facts of the case.    United States v. Brace, 145 F.3d 247,

263 (5th Cir.)(en banc), cert. denied, 119 S. Ct. 426 (1998).            The

language used by the district court demonstrates that under the

facts of this case, it did not believe that Espinoza’s mental

disorder was sufficient to warrant a downward departure.                As a

result, this   court   does   not   have   jurisdiction   to   review    the

district court’s refusal to downwardly depart, and therefore the

APPEAL IS DISMISSED.

     The Government has filed an unopposed motion requesting that

the appellate briefs be placed under seal. This motion is GRANTED.
