

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 97-1665

                        UNITED STATES,

                          Appellee,

                              v.

                  NELSON ESTRADA-BERREONDO,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

           [Hon. Mary M. Lisi, U.S. District Judge]                                                              

                                         

                            Before

                    Torruella, Chief Judge,                                                      
                       Selya and Stahl,
                       Circuit Judges.                                                 

                                         

Kenneth M. Diesnhof on brief for appellant.                               
Sheldon  Whitehouse, United  States Attorney,  Margaret E. Curran,                                                                             
Assistant  United  States  Attorney, and  James  H.  Leavey, Assistant                                                                   
United States Attorney, on brief for appellee.

                                         

                      NOVEMBER 19, 1997
                                         

     Per Curiam.   We  have examined the  submissions of  the                           

parties and  the record  below, and  we affirm.   Appellant's

first  contention, that his  nolo contendere plea  for simple                                                        

assault in a prior state proceeding should have been excluded

under U.S.S.G.   4A1.2(c)(1), is without merit.  The crime of

assault is not substantially similar to the excluded crime of

disorderly conduct.  Though an assault might  also qualify as

disorderly conduct,  the former involves not only a threat to

the public peace,  but also a threat to  the bodily integrity

of  another individual.   Appellant cites no  authority which

would equate the two crimes,  and at least two other circuits

have  distinguished the two  crimes for purposes  of applying

U.S.S.G.   4A1.2(c)(1);  see United States v.  Kemp, 938 F.2d                                                               

1020, 1025 (9th  Cir. 1991) (case remanded  for determination

of  whether  defendant's   conduct  more  closely   resembled

assault,  which would  be included  in  the criminal  history

calculation, or disorderly conduct, which would be excluded);

United States v. Russell, 913 F.2d 1288, 1294 (8th Cir. 1990)                                    

(assault is not similar to disorderly conduct for purposes of

computing  criminal history); cf.  United States v.  Cox, 934                                                                    

F.2d 1114, 1124 (10th Cir.  1991) (crime of "menacing" is not

similar  to disorderly  conduct, since  the  former is  crime

against an individual  and the latter is a  crime against the

public peace and order).

                             -2-

     Appellant's other two  points were not raised  below, so

this court may  reverse only for "plain error."   See Johnson                                                                         

v. United States,  117 S.Ct. 1544,  1549 (1997) (plain  error                            

must affect substantial rights and seriously affect fairness,

integrity or reputation of justice system).  We find no plain

error.

     Affirmed.  Loc. R. 27.1.                          

                             -3-
