

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 97-1918

                        UNITED STATES,

                          Appellee,

                              v.

                      MANUEL DE-LA-ROSA,
                        A/K/A CAYAYO,
                    A/K/A GREGORIO FABIAN,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

      [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                                                  

                                         

                            Before

                   Boudin, Stahl and Lynch,
                       Circuit Judges.                                                 

                                         

Joseph Frattallone-Marti on brief for appellant.                                    
Guillermo  Gil, United  States Attorney,  Jose  A. Quiles-Espinosa                                                                              
and Desiree Laborde-Sanfiorenzo, Assistant United States Attorneys, on
brief for appellee.

                                         

                       January 30, 1998
                                         

     Per  Curiam.    Defendant-appellant Manuel  de  la  Rosa                            

appeals from  his sentence entered  after his guilty  plea to

three   counts  charging  him   and  two  co-defendants  with

attempting to bring illegal aliens by boat from the Dominican

Republic  into the  United States,  at a  place other  than a

designated  port  of  entry,  in  violation  of  8  U.S.C.   

1324(a)(1)(A)(i) and  18 U.S.C.    2.  Rosa appeals  only one

aspect  of his  sentence:   the district court's  decision to

make an upward departure from the imprisonment range dictated

by the  guidelines  because the  offense  involved  dangerous

treatment.

     We  have carefully reviewed  the record and  applied the

three-part  review process  established in  United  States v.                                                                      

Diaz-Villafane,  874 F.2d 43 (1st Cir.  1989).  The departure                          

in  this  case satisfies  each  step  in  the process.    The

relevant guideline provision  (application note 5 to    2L1.1

of the  1995 Guidelines  Manual) satisfies  step  one of  the

Diaz-Villafane analysis  by specifically  providing that  the                          

circumstances relied upon by the district court are of a kind

that may appropriately  be relied upon to  justify departure.

See United States  v. Reyes, 927 F.2d 48, 52 (1st Cir. 1991).                                       

Step two is  satisfied by the undisputed facts  in the record

which  support the district  court's findings.   Finally, the

magnitude  of  the departure  is  not  beyond  the  realm  of

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reasonableness.   See id.  at 53  (upholding departure  which                                     

tripled term provided by guideline range).

     Rosa's complaint about an  unwarranted disparity between

his  sentence and the sentences received by his co-defendants

is  unfounded.  "Absent misapplication of the Guidelines, the

mere fact  of the  disparity is of  no consequence."   United                                                                         

States v.  Rodriguez, 63 F.3d 1159, 1168 (1st Cir. 1995).  In                                

this case,  there was no misapplication of the guidelines and

the  record contains  a fully  adequate  explanation for  the

disparity.   See United  States v. Trinidad  de la  Rosa, 916                                                                    

F.2d 27, 30 (1st Cir. 1990) (holding that co-defendant should

not  receive  an upward  departure  for dangerous  conditions

where he neither owned the  boat nor determined the number of

passengers).      "The   Constitution   permits   qualitative

differences   in  meting  out  punishment  and  there  is  no

requirement  that two persons  convicted of the  same offense

receive identical sentences."  Williams v. Illinois, 399 U.S.                                                               

235, 243 (1970).

     Finally,   Rosa's   claim   that  the   district   court

impermissibly double counted  by using his status  as captain

of the vessel to increase his  sentence in two ways, is  also

without  merit.   "Several  factors may  draw  upon the  same

nucleus of operative  facts while  nonetheless responding  to

discrete  concerns.  Consequently,  a degree  of relatedness,

without more,  does not  comprise double  counting."   United                                                                         

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States  v.  Lilly,  13 F.3d  15,  19 (1st  Cir.  1994).   The                             

leadership-role enhancement  and  the  upward  departure  for

dangerous treatment are  "neither conceptually nor  factually

equivalent."   Rodriguez,  63 F.2d  at  1169.   There was  no                                    

double counting in this case.

     Rosa's sentence is affirmed.  See Loc. R. 27.1.                                                  

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