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
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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that this opinion should not be published and is not precedent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.