IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-31010
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS GERARD CASSANI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 01-CR-24-ALL-F
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May 22, 2002
Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Thomas Gerard Cassani pleaded guilty without a plea
agreement to possession of materials involving the sexual
exploitation of minors. He argues that the district court erred
in denying his motion for a downward departure based on
diminished capacity due to its mistaken belief that it was not
authorized to do so.
*
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that this opinion should not be published and is not precedent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. 01-31010
-2-
This court has jurisdiction to hear this appeal if the
refusal to depart was premised upon a mistaken conclusion that
the guidelines do not permit such a departure, but we lack
jurisdiction if the refusal was premised on a determination that
a departure was not warranted under the facts of the case.
United States v. Brace, 145 F.3d 247, 263 (5th Cir. 1998)(en
banc). The district court denied the motion for a downward
departure, noting that there was no medical opinion that
Cassani’s crimes had been caused by his mental problems. As the
court did not misapprehend its authority under the Sentencing
Guidelines, we lack jurisdiction to hear this appeal. Id.
Accordingly, Cassani’s appeal is DISMISSED.