                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                             No. 95-40735
                           Summary Calendar


                      UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,


                                VERSUS


                           ANTHONY VIRGILI,

                                                   Defendant-Appellant.




          Appeal from the United States District Court
               For the Southern District of Texas
                            (CR-C-94-133)


                             May 8, 1996
Before REYNALDO G. GARZA, JONES, and WIENER, Circuit Judges.


     PER CURIAM:*
     Anthony   Virgili    ("Virgili")    appeals    his   sentence   for
conspiracy to possess with the intent to distribute over 100
kilograms of marijuana.    Virgili raises two issues in this appeal.
First, whether the district court should have sua sponte recused
itself because of its supposed lack of impartiality.            Second,
whether the district court abused its discretion in refusing to


     *
      Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
grant the government's motion to reduce Virgili's offense level
pursuant to U.S.S.G. § 5K1.1.              After reviewing the record and the
briefs, we find no error.         We therefore AFFIRM Virgili's sentence.
     Virgili's first argument is that the district court should
have recused itself because of what he perceived to be its lack of
impartiality.          Virgili did not move for recusal in the district
court.       Therefore, to the extent that we have the power to review
this issue,1 we review only for plain error.                 Reversal for plain
error       requires    a   showing   of    "particularly      egregious     errors"
resulting in a "miscarriage of justice."                   See United States v.
Young, 470 U.S. 1, 15 (1985).              Our review of the record detects no
such error in this case.
     Virgili also argues that the district court erred by denying
the government's U.S.S.G. § 5K1.1 motion for a downward departure
based on Virgili's substantial cooperation with the government.
Virgili contends that the district court erred in substituting its
judgment      on   whether    Virgili      substantially    cooperated      for   the
prosecutor's       judgment.      The      district   court,     however,    is   not
required to depart downward because the government files a § 5K1.1
motion. United States v. Franks, 46 F.3d 402, 406 (5th Cir. 1995).
Rather, the decision whether to grant such a motion is committed to
the discretion of the sentencing court.                    Id.    So long as the
district court does not violate any law in refusing to depart
downwardly, this Court will affirm its determination.                       Id.   Our


        1
      This Court has suggested that a recusal motion is waived on
appeal unless it is first brought before the trial court.      See
United States v. York, 888 F.2d 1050, 1055-56 (5th Cir. 1989).
Other courts, however, will review a recusal motion first filed on
appeal for plain error. See, e.g., United States v. Schreiber, 599
F.2d 534, 535-36 (3d Cir.), cert. denied, 444 U.S. 843 (1979). We
do not need to resolve this issue in this case, however, because
Virgili had not established plain error in this case. See York,
888 F.2d at 1056 (refusing to resolve the issue because York, the
defendant, did not establish plain error.").

                                            2
review of the record reveals that the district court did not abuse
its discretion or violate any law in refusing to depart downwardly.
The   information   that    Virgili   provided      the    government   was   of
"limited"   help,   and    the   government   did    not    believe   that    the
information was enough for it to prevail in trial against other
suspected criminals.        We therefore AFFIRM the district court's
denial of the government's 5K1.1 motion.
AFFIRMED.




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