                                 IN THE UNITED STATES COURT OF APPEALS
                                          FOR THE FIFTH CIRCUIT



                                                              No. 98-40796
                                                            Summary Calendar


UNITED STATES OF AMERICA,

                                                                                                                    Plaintiff-Appellee,

                                                                      versus

SCOTT MARK LAIR,

                                                                                                                    Defendant-Appellant.
                                  __________________________________________

                                     Appeal from the United States District Court
                                          for the Southern District of Texas
                                             USDC No. C-97-CR-287-1
                                  __________________________________________

                                                               August 4, 1999

Before KING, Chief Judge, HIGGINBOTHAM and STEWART, Circuit Judges.

PER CURIAM:*

           Scott Mark Lair appeals his conviction for being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). He argues that the district court erred in denying his motion

for new trial based on newly discovered evidence of his alleged mental incompetence and erred in

denying his request for a downward departure based on diminished mental capacity.

           We have reviewed the record and the briefs of the parties and hold that the district court

did not abuse its discretion in denying the motion for new trial. United States v. Jaramillo, 42

F.3d 920, 924 (5th Cir. 1995); United States v. Sanchez-Sotelo, 8 F.3d 202, 212 (5th Cir. 1993).

           With regard to the district court’s refusal to depart downward, this court has jurisdiction if

a refusal to depart downward was premised upon a mistaken conclusion that the guidelines do not


           *
                 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the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.
permit such a departure, but lacks jurisdiction if the refusal was 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). There is nothing in the record to

indicate that the district court erroneously believed that it lacked authority to depart downward.

See United States v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999)(citing United States v.

Willey, 57 F.3d 1374, 1392 n. 32 (5th Cir. 1995); see also United States v. Valencia-Gonzales,

172 F.3d 344, 346 (5th Cir. 1999). As a result, this court does not have jurisdiction to review

the district court’s refusal to downwardly depart. The judgment of the district court is
AFFIRMED.

       AFFIRMED.




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