                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                November 8, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 04-61174
                         Summary Calendar



                     UNITED STATES OF AMERICA,

                        Plaintiff-Appellee,

                                versus

                       SHERRIE MILLER DALY,

                       Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
             for the Northern District of Mississippi
                       USDC No. 3:03-CR-106
                       --------------------

Before   HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Sherrie Miller Daly appeals from her sentence following a

guilty-plea conviction for conspiracy to structure transactions to

evade reporting requirements.    She argues that the district court

erred by denying her motion for a downward departure based upon

surrogate assistance. Because the district court did not deny that

motion based upon a mistaken belief that it lacked the authority to

depart, this court lacks jurisdiction to review that denial.         See

United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995).


     *
       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this opinion should not be published and is not precedent except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. 04-61174
                                -2-

Moreover, even if United States v. Booker, 125 S. Ct. 738 (2005),

is construed to allow this court’s review of the district court’s

denial of Daly’s motion for a downward departure, she has not shown

that the district court’s factual finding supporting that denial

was clearly erroneous.   See United States v. Villanueva, 408 F.3d

193, 203 & n.9 (5th Cir. 2005), petition for cert. filed (July 26,

2005) (No. 05-5580).

     Daly also contends that the district court improperly applied

an upward departure from the sentencing guidelines when determining

her sentence and subsequently altered the basis for that sentence

when setting forth the written judgment.     These arguments lack

factual merit.

     Accordingly, the district court’s judgment is AFFIRMED.
