               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 98-41313
                        Conference Calendar



UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

RENE RODRIGUEZ-DE LA CRUZ,

                                             Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. B-98-CR-297-1
                       - - - - - - - - - -

                             June 15, 1999

Before EMILIO M. GARZA, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

     Rene Rodriguez-De La Cruz appeals his sentence for illegal

entry after deportation, in violation of 8 U.S.C. § 1326.      He

contends that the district court abused its discretion by denying

him a downward departure pursuant to U.S.S.G. § 2L1.2, comment.

(n.5).

     We lack jurisdiction to review a defendant’s challenge to

his sentence based upon mere dissatisfaction with the court’s




     *
        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that this opinion should not be published and is not precedent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. 98-41313
                               -2-

refusal to grant a downward departure.    United States v. DiMarco,



46 F.3d 476, 477 (5th Cir. 1995).   A refusal to depart downward

is a violation of law only if the district court mistakenly

assumed that it lacked the authority to depart.     United States v.

Burleson, 22 F.3d 93, 95 (5th Cir. 1994).

     After reviewing the transcript from the sentencing hearing

and the arguments on appeal, we find that the district court did

not misapprehend its authority to depart but that, instead, its

refusal to depart was an exercise of discretion which this court

lacks jurisdiction to review on appeal.     DiMarco, 46 F.3d at 477.

     APPEAL DISMISSED FOR LACK OF JURISDICTION.
