                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  February 13, 2007

                                                            Charles R. Fulbruge III
                                                                    Clerk
                              No. 06-50349
                          Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JERRY DALE NELSON, also known as Jerald Nelson,

                                      Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. 7:05-CR-128-1
                       --------------------

Before BARKSDALE, GARZA, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jerry Dale Nelson appeals his guilty-plea conviction and

sentence for aiding and abetting the attempt to manufacture

methamphetamine and possession of a firearm in furtherance of a

drug-trafficking crime.    Nelson argues that the district court

erred by denying him a downward departure under U.S.S.G. § 5K2.13

based on diminished mental capacity.    He also contends that he

may have received ineffective assistance of counsel.

     Although the Government seeks to enforce the waiver-of-

appeal provision in Nelson’s plea agreement, given the

     *
       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this opinion should not be published and is not precedent except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. 06-50349
                               -2-

inadequacies in the transcription of portions of the

rearraignment hearing, we do not enforce the waiver.    Because the

district court did not misapprehend its authority to depart from

the Guidelines under § 5K2.13, we lack jurisdiction to review the

court’s denial of a downward departure.     See United States v.

Sam, 467 F.3d 857, 861 (5th Cir. 2006).

     To the extent that Nelson raises the issue of ineffective

assistance of counsel, the record has not been adequately

developed to address this issue on direct appeal.     See United

States v. Sanchez-Pena, 336 F.3d 431, 445-46 (5th Cir. 2003).

     AFFIRMED IN PART; DISMISSED IN PART.
