                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 5, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-30763
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

FREDERICK ROBERTSON,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                      USDC No. 2:05-CR-189
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Frederick Robertson appeals the 30-month sentence imposed by

the district court following his guilty-plea conviction on one

count of being a felon in possession of a firearm.     He contends

that the district court denied the Government’s U.S.S.G. § 5K1.1

motion for a downward departure based on substantial assistance

because of his criminal history, which convinced the district

court that an upward departure would have been appropriate but

for his assistance to the Government.   Robertson argues that 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this opinion should not be published and is not precedent except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. 06-30763
                                 -2-

district court improperly considered his arrest record in denying

the Government’s § 5K1.1 motion to downwardly depart.

       “This court will affirm a refusal to depart from the

Guidelines unless the refusal was in violation of law.”       United

States v. Miro, 29 F.3d 194, 199 (5th Cir. 1994).     “A refusal to

depart violates law only if the court refuses to depart under the

mistaken assumption that it does not have the authority to do

so.”    United States v. Akin, 62 F.3d 700, 701 (5th Cir. 1995).

This court lacks jurisdiction to review a refusal to depart

downwardly except “where the defendant points to something in the

record indicating that the district court held an erroneous

belief that it lacked the authority to depart.”     United States v.

Hernandez, 457 F.3d 416, 424 (5th Cir. 2006).

       We affirm the district court’s judgment because Robertson

has failed to point to anything in the record to indicate that

the district court was under the erroneous belief that it lacked

the authority to downwardly depart based on his substantial

assistance.    See Hernandez, 457 F.3d at 424; Akin, 62 F.3d at

701.    Moreover, our review of the sentencing transcript convinces

us that the district court relied on permissible factors, rather

than on Robertson’s arrest record, in reaching its determination

that an upward departure would have been justified.     See U.S.S.G.

§ 4A1.3; United States v. Alford, 142 F.3d 825, 831 (5th Cir.

1998).

       AFFIRMED.
