
USCA1 Opinion

	




          September 1, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1696                                     UNITED STATES,                                      Appellee,                                          v.                                    WILLIAM ROSA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Frank H. Freedman, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            William Rosa on brief pro se.            ____________                                 ____________________                                 ____________________                      Per Curiam.  William  Rosa was sentenced on January                      __________            6, 1992,  to a prison term  of 108 months  for drug offenses.            At sentencing, Rosa apparently received a two-level reduction            in base  offense  level  for  acceptance  of  responsibility.            Effective  November  1,  1992, the  United  States Sentencing            Commission amended sentencing guideline    3E1.1 to permit an            additional  one-level reduction  in  base  offense level  for            persons eligible for  the two-level reduction for  acceptance            of  responsibility.    Rosa  sought to  reduce  his  sentence            pursuant  to   the  amended  guideline,   claiming  that  the            amendment  should  be applied  retroactively.   The  district            court denied his request.   Because we have decided  that the            amendment  in question  is  not retroactive,  see DeSouza  v.                                                          ___ _______            United States, 995 F.2d  323, 324 (1st Cir. 1993),  we affirm            _____________            the district court's denial of Rosa's request for  a sentence            reduction under amended   3E1.1.1                      Affirmed.                      ________                                            ____________________            1.  On July 9, 1993, this court issued an order directing the            district court  to take action  on Rosa's untimely  notice of            appeal, which we treated as a request to extend the time  for            filing a  notice of appeal.   As we indicate  in our opinion,            under DeSouza  the judgment  of the  district  court must  be                  _______            affirmed on the merits.   Therefore, the jurisdictional issue            presented by Rosa's  untimely notice  of appeal  need not  be            addressed, see Amann v. Stow School System, 982 F.2d 644, 648                       ___ _____    __________________            n.2  (1st  Cir.  1992)   (declining  to  consider  whether  a            technically deficient notice of appeal conferred jurisdiction            on the court since the district court's judgment was affirmed            on the merits), and we hereby vacate our July 9th order.
