               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 99-40135
                        Conference Calendar



UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

versus

JUAN MANUEL CASILLAS-LLAMAS,

                                              Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. M-98-CR-333-01
                       - - - - - - - - - -

                            August 26, 1999

Before KING, Chief Judge, and JOLLY and DAVIS, Circuit Judges.

PER CURIAM:*

     Juan Manuel Casillas-Llamas argues that the district court

did not address his request for an additional downward departure

based on cultural assimilation and that this inaction constitutes

a violation of Fed. R. Civ. P. 32.

     The Rule 32 violation is harmless because this court may not

review the denial of an additional downward departure when there

is no evidence that the district court refused to depart downward

under the mistaken belief that it could not legally do so.           See


     *
        Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
                            No. 99-40135
                                 -2-

Peguero v. United States, 119 S. Ct. 961, 965 (1999); United

States v. Valencia-Gonzales, 172 F.3d 344, 346 (5th Cir. 1999);

United States v. Aggarwal, 17 F.3d 737, 745 (5th Cir. 1994).      The

district court’s silence on the motion for a downward departure

based on cultural assimilation is construed as an implicit

denial.   See Aggarwal, 17 F.3d at 745.    Therefore, Casillas’

sentence is AFFIRMED.

     The Government has moved to dismiss the appeal and cites

United States v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999).

However, Reyes-Nava is not applicable to this case, and the issue

was not wholly frivolous.   Therefore, the motion to dimiss the

appeal is DENIED.

     AFFIRMED.   MOTION TO DISMISS is DENIED.
