

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 97-1420

                        UNITED STATES,

                          Appellee,

                              v.

                      JULIAN G. BENOIT,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Nathaniel M. Gorton, U.S. District Judge]                                                                 

                                         

                            Before

                   Boudin, Stahl and Lynch,
                       Circuit Judges.                                                 

                                         

Martin D. Boudreau on brief for appellant.                              
Donald K.  Stern, United  States Attorney,  and Donald L.  Cabell,                                                                             
Assistant United States Attorney, on brief for appellee.

                                         

                      Jaanuary 22, 1998
                                         

     Per Curiam.    Upon careful  review  of the  briefs  and                           

record,  we conclude  that  we do  not  have jurisdiction  to

review the district  court's denial of a  downward departure.

As we  read the  district court's  comments, and  contrary to

defendant's reading, the district court assumed its authority

to depart, arguendo, and  expressly exercised its  discretion                               

not to  depart based on the specific facts  of this case.  No

mistake of law is evident from those comments.

     Affirmed.  See 1st Cir. Loc. R. 27.1.                               

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