IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40092
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARDO FLORES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-96-CR-81-1
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December 3, 1997
Before WIENER, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Edwardo Flores appeals his conviction and sentence for
conspiracy and possession with intent to distribute marijuana.
21 U.S.C. §§ 841(a)(1) and 846. Flores’ claim of insufficient
evidence to show possession with intent to distribute is a
challenge to the credibility of eyewitness testimony. This court
may not substitute its credibility assessments for those of the
jury. United States v. Lopez, 74 F.3d 575, 578 (5th Cir.), cert.
denied, 116 S. Ct. 1867 (1996). This claim is without merit.
*
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that this opinion should not be published and is not precedent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. 97-40092
-2-
The evidence did not establish that Flores was less culpable
than others involved in the offense. The district court did not
clearly err in refusing to award a reduction in his offense level
pursuant to U.S.S.G. § 3B1.2. See United States v. Tremelling,
43 F.3d 148, 152 (5th Cir.), cert. denied, 514 U.S. 1122 (1995).
Flores’ argument that he should have received a downward
departure on the basis of his poor health and diminished mental
capacity is not reviewable on appeal. See United States v.
Leonard, 61 F.3d 1181, 1185 (5th Cir. 1995). Because the
district court did not misapply the sentencing guidelines, this
court lacks jurisdiction to review the court’s refusal to grant a
downward departure. Id.; United States v. DiMarco, 46 F.3d 476,
477 (5th Cir. 1995).
AFFIRMED.