                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                     March 17, 2004

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 03-20692
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                    ARTURO RODRIGUEZ-CANALES,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                        (H-03-CR-39-ALL)


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Arturo Ridriguez-Canales (“Rodriguez”) appeals his sentence,

imposed following his guilty plea for illegal reentry.      He claims

the district court mistakenly believed it did not have authority to

depart downward from the sentencing guidelines based on the double

counting of his previous conviction.

     We lack jurisdiction to review a refusal to depart downward,

however, unless it was based on a mistaken belief that the court

lacked authority to so depart. See, e.g., United States v. Thames,



     *
        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this opinion should not be published and is not precedent except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.
214 F.3d 608, 612 (5th Cir. 2000).   The record reflects that the

district court was aware that it had the authority to depart

downward; it did not believe that Rodriguez’ case warranted it.

Therefore, we lack jurisdiction to review the determination.   See

id.; United States v. DiMarco, 46 F.3d 476, 477-78 (5th Cir. 1995).

                                                      DISMISSED




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