                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                              No. 01-11027
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

LARRY A. ROBERTS,

                                           Defendant-Appellant.

                       --------------------
           Appeal from the United States District Court
                for the Northern District of Texas
                    USDC No. 3:01-CR-125-ALL-L
                       --------------------
                          April 11, 2002

Before SMITH, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Larry A. Roberts ("Roberts") appeals the sentence imposed

following his guilty-plea conviction for possession of child

pornography.**    Roberts contends that the district court abused

its discretion in denying his motion for a downward departure on


     *
        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that this opinion should not be published and is not precedent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 Government argues that Roberts validly waived his
right to appeal his sentence in his plea agreement. However, the
appellate record does not include a copy of the rearraignment
transcript, and therefore the record is inadequate to review
whether Roberts' appeal waiver was knowing and voluntary and the
appeal waiver will not be enforced. See FED. R. CRIM. P.
11(c)(6); United States v. Robinson, 187 F.3d 516, 517 (5th Cir.
1999).
                             No. 01-11027
                                  -2-

the ground of diminished mental capacity.    The district court

sentenced Roberts to 27 months' imprisonment, the lowest sentence

under the applicable guideline sentencing range, but determined

that a downward departure was not warranted because, after

considering the testimony of Roberts' psychiatrist, the court

found that Roberts was not suffering from diminished mental

capacity.

     This court has jurisdiction to review a district court’s

decision not to depart from the sentencing guidelines only if the

court’s refusal was based on a violation of the law.      United

States v. Brace, 145 F.3d 247, 263 (5th Cir. 1998)(en banc); see

also United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir.

1995).    This court lacks jurisdiction if the refusal was premised

on a determination that a departure was not warranted under the

facts of the case.     Brace, 145 F.3d at 263.   The district court

recognized its authority to depart downward but determined that a

downward departure was not warranted based on the facts of the

case.    See id.   Therefore, this court lacks jurisdiction to

review the district court’s denial of Roberts' motion for a

downward departure.     See DiMarco, 46 F.3d at 477.

     APPEAL DISMISSED.
