UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-41595
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KEVIN D. CLAYTON,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. C-98-CR-244
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September 20, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Kevin D. Clayton has appealed the sentence he received after
he pleaded guilty to possessing marijuana with intent to
distribute it. We AFFIRM.
The resolution to Clayton's appeal turns on whether the
district court erroneously concluded that it could not depart
downward under U.S.S.G. § 5K2.0, after Clayton received leniency
pursuant to U.S.S.G. § 5C1.2, the "safety-valve" provision.
Section § 5K2.0 provides, in part, for a departure if there
*
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this opinion should not be published and is not precedent except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.
is a "mitigating circumstance of a kind, or to a degree, not
adequately taken into consideration . . . in formulating the
guidelines." "This court can review a district court's refusal
to depart from the guidelines only if the district court based
its decision upon an erroneous belief that it lacked the
authority to depart." United States v. Valencia-Gonzales, 172
F.3d 344, 346 (5th Cir. 1999), petition for cert. filed, (U.S.
July 8, 1999) (No. 99-5249) (citation and quotation marks
omitted). Furthermore, there must be something in the record
that indicates that the district court held such an erroneous
belief; the district court's summary denial without explanation
is insufficient. Id. Accordingly, this court lacks
"jurisdiction to review the district court's determination that a
departure was not warranted on the facts of [the defendant's]
case." United states v. Carmouche, 138 F.3d 114, 1018 (5th Cir.
1988).
Clayton asserts that the district court found that his
mental capacity, family circumstances, and unique cooperation
with the Government justified a departure under § 5K2.0.
However, the sentencing transcript does not support these
assertions. The district court correctly held that there could
be no departure under § 5K1.1 for substantial assistance to the
Government, because the Government had not moved therefor. See
United States v. Solis, 169 F.3d 224, 226-7 (5th Cir. 1999),
petition for cert. filed, (U.S. June 3, 1999) (No. 98-9623). The
court also was aware "that § 5K2.0 does not afford district
courts any additional authority to consider substantial
assistance departures without a government motion." Id. at 227.
Upon inquiry by the court, neither the probation officer nor
Clayton's counsel was able to show that there were "mitigating
circumstances" that justified a § 5K2.0 downward departure.
Clayton's appeal lacks merit because the district court
determined that a departure was not warranted on the facts of his
case, a ruling that this court lacks jurisdiction to review. See
Carmouche, 138 F.3d at 1018.
AFFIRMED.