UNITED STATES of America, Plaintiff-Appellee, v. Mickey June JONES, Defendant-Appellant, 33 F. App'x 484

ORDER AND JUDGMENT EBEL, Circuit Judge. Defendant-Appellant challenges the district court’s refusal to grant a discretionary downward departure for diminished mental capacity pursuant to United States Sentencing Guideline § 5K2.13. We find that we lack jurisdiction to consider this claim, as “[a] discretionary refusal to depart downward is not reviewable by this court unless it appears from the record the sentencing court erroneously believed the Guidelines did not permit a downward departure.” United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir.1995).

Our review of the record reflects that the district judge was indeed aware that a downward departure was possible under the Guidelines, but found the evidence insufficient to merit such a downward departure under § 5K2.13. After thoroughly reviewing Appellant’s proffered evidence of diminished mental capacity, the district court concluded, “[therefore, the Court finds that there is not a sufficient basis in the record here to permit a downward departure for diminished capacity.” Accordingly, we DISMISS this appeal for lack of jurisdiction.

After examining appellant’s brief and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.