* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-51027 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RODOLFO ESPINOZA-HERNANDEZ, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. SA-97-CR-43-ALL July 14, 1999 Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM: * Rodolfo Espinoza-Hernandez (Espinoza) appeals his sentence for illegal reentry. He argues that the district court erred in d etermining that it was unable to depart under the extraordinary circumstances of his case, as is permitted by Koon v. United States , 518 U.S. 81, 106 (1996).

This court has juri sdiction if a refusal to depart downward was premised upon a mistaken conclusion that the guidelines do not permit such a departure, but lacks jurisdiction if the refusal was premised on a determination that a departure was not warranted under the facts of the case. U nited States v. Brace , 145 F.3d 247, 263 (5th Cir.)(en banc), cert. denied , 119 S. Ct. 426 (1998). The language used by the district court demonstrates th at under the facts of this case, it did not believe that EspinozaÂ’s mental disorder was sufficient to warrant a downward departure. As a result, this court does not have jurisdiction to review the district courtÂ’s refusal to downwardly depart, and th erefore the APPEAL IS DISMISSED.

The Government has filed an unopposed motion requesting that the appellate briefs be placed under seal. This motion is GRANTED.

No. 98-51027