
    UNITED STATES of America, Plaintiff-Appellee, v. Richard HENSON, Defendant-Appellant.
    No. 02-5605.
    United States Court of Appeals, Sixth Circuit.
    Jan. 31, 2003.
    Before MARTIN, Chief Judge; MERRITT and LAY, Circuit Judges.
    
      
      The Honorable Donald P. Lay, United States Circuit Judge for the Eighth Circuit, sitting by designation.
    
   ORDER

Richard Henson appeals his judgment of conviction and sentence. The parties have expressly waived oral argument pursuant to Rule 34(j)(3), Rules of the Sixth Circuit, and we agree that oral argument is not necessary. Fed. R.App. P. 34(a).

Henson pleaded guilty to charges of possession with the intent to distribute and distribution of marijuana and methamphetamine, violations of 21 U.S.C. § 841(a)(1). He was sentenced to 45 months of imprisonment to be followed by three years of supervised release.

On appeal, Henson challenges his sentence, contending that the district court should have granted him a downward departure in offense level — pursuant to USSG § 5K2.13 — because his mental capacity was diminished. Both parties have waived oral argument in their briefs.

Henson’s contention that the district court should have granted him a downward departure is not cognizable in the circumstances presented in this case. A district court’s discretionary decision not to depart downward from the guidelines range ordinarily is not appealable. United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995). An appeal may be taken, however, when the district court believed that it lacked the authority to depart downward as a matter of law. United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994). To determine whether the court believed that it lacked authority to deviate from the guidelines, we examine the transcript of the sentencing hearing. United States v. Ebolum, 72 F.3d 35, 37 (6th Cir.1995). Our review of the sentencing transcript reveals that the district court did not mistakenly believe that it lacked the authority to grant the requested departure: it merely found that a departure was not appropriate in the light of the particular circumstances of the case. This issue is unappealable. United States v. Buchanan, 207 F.3d 344, 355, 2000 WL 183881 (6th Cir.2000).

Accordingly, we affirm the district court’s judgment.  