[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

No. 97-1669

UNITED STATES,

Appellee,

v.

JOSE ANTONIO NUNEZ-RODRIGUEZ,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Boudin, Circuit Judge, Coffin, Senior Circuit Judge, and Lynch, Circuit Judge.

H. Manuel Hernandez on brief for appellant.

Guillermo Gil, United States Attorney, Rosa Emilia Rodriguez-Velez, Executive Assistant United States Attorney, Jose A. Quiles-Espinosa, Senior Litigation Counsel, and Nelson Perez-Sosa, Assistant United States Attorney, on brief for appellee.

April 7, 1998

Per Curiam. The district court considered the new motion for a departure on the merits and made clear that it had no interest in granting a departure. This discretionary refusal to depart is not subject to appellate review. See United States v. Nunez-Rodriguez, 92 F.3d 14 (1st Cir. 1996), and it is therefore unnecessary for us to consider whether a decision to depart would have been within the scope of remand and allowed under the law of the case doctrine.

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