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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40635
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO AMADOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-98-CR-490-ALL
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February 17, 2000
Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Arturo Amador appeals his guilty-plea conviction for possession with intent to distribute heroin. He argues that the district court erred in denying his request for a downward departure on the basis that his criminal history category overrepresented the seriousness of his past criminal conduct.
This court has jurisdiction to review the district court’s refusal to depart downward because the court mistakenly believed that it was bound to follow the guidelines and that the guidelines did not permit a downward departure in this circumstance. United States v. Harrison, 918 F.2d 30, 31 (5th
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-40635 -2- Cir. 1990).
Nevertheless, this court must affirm the district court’s refusal to depart downward because Amador failed to state in the district court and on appeal what portion of his criminal history was overrepresented. The judgment of the district court is AFFIRMED.