                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                     IN THE UNITED STATES COURT OF APPEALS
                                                                                   September 1, 2004
                                 FOR THE FIFTH CIRCUIT                           Charles R. Fulbruge III
                                                                                         Clerk


                                         No. 01-40601



       UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                             versus

       DALTON BABINEAUX,

                                                           Defendant-Appellee.


                   Appeal from the United States District Court for
                            the Eastern District of Texas
                             (USDC No. 1:99-CR-84-1)
           _______________________________________________________


Before REAVLEY, JONES and DENNIS, Circuit Judges.

REAVLEY, Circuit Judge:*

       Dalton Babineaux appeals from his sentence for possession with intent to

distribute crack cocaine in violation of 21 U.S.C. § 841 (a) (1). Babineaux argues that the

district court erred in denying his motion for a downward departure based upon its

mistaken assumption that it did not have the authority to grant a departure.


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       The record does not show that the district court misunderstood the scope of its

authority to depart downward. Therefore, this court does not have the jurisdiction to

review the district court’s decision to decline to grant a downward departure. See United

States v. Buck, 324 F.3d 786, 798 (5th Cir. 2003).

       APPEAL DISMISSED.




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