                     [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                     FOR THE FIRST CIRCUIT

                                         

No. 97-1669

                        UNITED STATES,

                           Appellee,

                              v.

                 JOSE ANTONIO NUNEZ-RODRIGUEZ,

                     Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jose Antonio Fuste, U.S. District Judge]

                                         

                            Before

                     Boudin, Circuit Judge,
                 Coffin, Senior Circuit Judge,
                   and Lynch, Circuit Judge.

                                         

H. Manuel Hernandez on brief for appellant.
Guillermo Gil, United States Attorney, Rosa Emilia Rodriguez-Velez,
Executive Assistant United States Attorney, Jose A. Quiles-Espinosa,
Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant United
States Attorney, on brief for appellee.

                                         

                        April 7, 1998
                                         

  Per Curiam.  The district court considered the new motion
for a departure on the merits and made clear that it had no
interest in granting a departure.  This discretionary refusal
to depart is not subject to appellate review.  See United
States v. Nunez-Rodriguez, 92 F.3d 14 (1st Cir. 1996), and it
is therefore unnecessary for us to consider whether a decision
to depart would have been within the scope of remand and
allowed under the law of the case doctrine.
    Affirmed.  See 1st Cir. Loc. R. 27.1.
