               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 01-31010
                          Summary Calendar



UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

THOMAS GERARD CASSANI,

                                         Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
              for the Eastern District of Louisiana
                     USDC No. 01-CR-24-ALL-F
                       --------------------
                           May 22, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Thomas Gerard Cassani pleaded guilty without a plea

agreement to possession of materials involving the sexual

exploitation of minors.   He argues that the district court erred

in denying his motion for a downward departure based on

diminished capacity due to its mistaken belief that it was not

authorized to do so.




     *
        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that this opinion should not be published and is not precedent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. 01-31010
                                -2-

     This court has jurisdiction to hear this appeal if the

refusal to depart was premised upon a mistaken conclusion that

the guidelines do not permit such a departure, but we lack

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. 1998)(en

banc).   The district court denied the motion for a downward

departure, noting that there was no medical opinion that

Cassani’s crimes had been caused by his mental problems.   As the

court did not misapprehend its authority under the Sentencing

Guidelines, we lack jurisdiction to hear this appeal.   Id.

Accordingly, Cassani’s appeal is DISMISSED.
