

                      [NOT FOR PUBLICATION]

                  United States Court of Appeals
                      For the First Circuit

                                           

No. 96-2350

                          UNITED STATES,

                            Appellee,

                                v.

                          FRANCIS BOOTS,

                      Defendant - Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]                                                               

                                           

                              Before

                     Torruella, Chief Judge,                                                     

                 Campbell, Senior Circuit Judge,                                                         

                    and Stahl, Circuit Judge.                                                      

                                           

     David W. Bate for appellant.                            
     F. Mark Terison, Assistant United States Attorney, with whom                              
Jay  P.  McCloskey,  United  States  Attorney,  and  Margaret  D.                                                                           
McGaughey, Assistant  United States  Attorney, were on  brief for                   
appellee.

                                           

                          June 25, 1997
                                           

          Per  Curiam.   Francis Boots  ("Boots") was  convicted,                    Per  Curiam.                                

following  a jury trial, of conspiracy, in violation of 18 U.S.C.

  371, to commit three offenses:

            1)  to devise a  scheme or artifice using
            the  wires  in  interstate commerce  with
            intent to defraud Canada and the Province
            of Nova  Scotia of excise duties  and tax
            revenues,  in  violation  of   18  U.S.C.
              1343; 2) to devise a scheme or artifice
            to   deprive   the   residents   of   the
            Passamaquoddy Reservation in Maine of the
            honest services of their police chief, in
            violation of 18 U.S.C.    1343 and  1346;
            and  3)  to  travel interstate  with  the
            intent  to  facilitate  bribery, a  crime
            under Maine state law, in violation of 18
            U.S.C.   1952.

United States v.  Boots, 80  F.3d 580, 582-83  (1st Cir.),  cert.                                                                           

denied, 417 S. Ct. 263 (1996) ("Boots I").                                                 

          Following conviction by  the district court, Boots  and

his  co-defendants appealed to this  court.  We  reversed in part

and  remanded for  resentencing.   Id. at  595.  On  November 22,                                                

1996,  the  district court  sentenced  Boots  to fourteen  months

imprisonment.  He now appeals the sentence.

          Boots first argues that he was entitled  to a two-point

reduction   in   his   sentencing   level   for   acceptance   of

responsibility.  This issue was reviewed by this court in Boots I                                                                           

and,  therefore,  the ruling  in Boots  I  -- which  affirmed the                                                   

district court's denial of a downward departure for acceptance of

responsibility -- is the law  of the case.  Boots  is, therefore,

precluded from seeking  review of the issue  unless "the evidence

on a  subsequent trial  was substantially  different, controlling

authority has since made a contrary decision of law applicable to

                               -2-

such issues, or the decision was clearly erroneous and would work

an injustice."  Cohen v. Brown Univ., 101 F.3d 155, 168 (1st Cir.                                              

1996), cert. denied, 117 S. Ct. 1469 (1997).                             

          Boots  alleges that the  district court's  statement on

remand that  he had been  truthful with  the court was  enough to

allow  reconsideration of  our  earlier decision.   We  disagree.

Although it is true  that the district court commented  on Boots'

truthfulness, this  choice of  words by the  sentencing court  is

insufficient to overcome  the law of  the case doctrine.   As  we

stated in  Cohen v.  Brown  University, "only  a few  exceptional                                                

circumstances can  overcome the interests served  by adherence to

the  [law of the case] doctrine and those exceptions are narrowly

circumscribed."   Id.   It  is insufficient  for  appellant Boots                               

simply to point  to comments  by the district  court that  differ

from comments made by that court prior to Boots I without showing                                                           

that these  comments amount to substantially  different evidence.

As  he has failed  to show that  substantially different evidence

was  presented, we affirm the district court's decision as to the

acceptance of responsibility issue.1

          Boots' second argument is that the district court erred

in imposing a  fourteen month sentence.  He does not dispute that

the  district court correctly calculated  his offense level to be

thirteen,  which implies a  sentence range of  twelve to eighteen
                                                  

1   We  add that  even if  we decided  that the  law of  the case
doctrine  did not  apply,  we would  be  required to  affirm  the
district court  decision unless it were  clearly erroneous, which
it is not.  See United States v. Royer, 895 F.2d 28, 30 (1st Cir.                                                
1990).

                               -3-

months.    He claims,  however, that  in  choosing a  sentence of

fourteen months,  the court impermissibly considered  tax revenue

loss suffered by Canada.

          As a general  rule, it is  established that this  court

ordinarily  has no jurisdiction  to review a  sentence within the

applicable sentencing guideline range if that range was correctly

determined.  United  States v. Panet-Collazo,  960 F.2d 256,  261                                                      

(1st  Cir.  1992).    Since  there  is  no  indication  that  the

sentencing  court's affixation  of  the  fourteen-month term  was

otherwise "in violation of law,"2 18 U.S.C.   3742(a)(1), we lack

jurisdiction to consider this claim.  See United States v. Col n,                                                                          

884 F.2d 1550 (2d Cir. 1989).

          Affirmed.                    Affirmed                            

                                                  

2  On plain error review,  we conclude that the district  court's
consideration  of the Canadian  tax revenue loss,  although not a
predicate for wire fraud, see United States v. Boots, 80 F.3d 580                                                              
(1st Cir.), cert. denied, 417 S. Ct. 263 (1996), was not improper                                  
given that  the  guidelines permit  the  court to  consider  "any
information  . . . unless otherwise prohibited by law."  U.S.S.G.
  1B1.4.     We  note  also  that  other  circuits  have  allowed
consideration  of foreign  convictions in  determining sentencing
within the applicable range.   See United States v.  Soliman, 889                                                                      
F.2d 441  (2d Cir. 1989)  (interpreting United States  v. Tucker,                                                                          
404 U.S. 443 (1972)).   See also United States  v. Fleishman, 684                                                                      
F.2d 1329 (9th Cir. 1982).

                               -4-
