[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 97-1420

UNITED STATES,

Appellee,

v.

JULIAN G. BENOIT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Stahl and Lynch, Circuit Judges.

Martin D. Boudreau on brief for appellant.

Donald K. Stern, United States Attorney, and Donald L. Cabell,

Assistant United States Attorney, on brief for appellee.

Jaanuary 22, 1998

Per Curiam. Upon careful review of the briefs and

record, we conclude that we do not have jurisdiction to

review the district court's denial of a downward departure.

As we read the district court's comments, and contrary to

defendant's reading, the district court assumed its authority

to depart, arguendo, and expressly exercised its discretion

not to depart based on the specific facts of this case. No

mistake of law is evident from those comments.

Affirmed. See 1st Cir. Loc. R. 27.1.

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