UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICKEY JUNE JONES,

Defendant - Appellant.	No. 01-5195

(D.C. No. 01-CR-30-H)

(N.D. Oklahoma)

ORDER AND JUDGMENT*

Before TACHA, Chief Judge, EBEL and LUCERO, Circuit Judges.

Defendant-Appellant challenges the district court's refusal to grant a discretionary downward departure for diminished mental capacity pursuant to United States Sentencing Guideline § 5K2.13. We find that we lack jurisdiction to consider this claim, as "[a] discretionary refusal to depart downward is not reviewable by this court unless it appears from the record the sentencing court erroneously believed the Guidelines did not permit a downward departure." United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995). Our review of the record reflects that the district judge was indeed aware that a downward departure was possible under the Guidelines, but found the evidence insufficient to merit such a downward departure under § 5K2.13. After thoroughly reviewing Appellant's proffered evidence of diminished mental capacity, the district court concluded, "[t]herefore, the Court finds that there is not a sufficient basis in the record here to permit a downward departure for diminished capacity."

Accordingly, we DISMISS this appeal for lack of jurisdiction.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge