United States v. Rosa ( 1993 )

USCA1 Opinion

          September 1, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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        No. 93-1696 

                                    UNITED STATES,

                                      Appellee,

                                          v.

                                    WILLIAM ROSA,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                    [Hon. Frank H. Freedman, U.S. District Judge]
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                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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            William Rosa on brief pro se.
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                      Per Curiam.  William  Rosa was sentenced on January
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            6, 1992,  to a prison term  of 108 months  for drug offenses.

            At sentencing, Rosa apparently received a two-level reduction

            in base  offense  level  for  acceptance  of  responsibility.

            Effective  November  1,  1992, the  United  States Sentencing

            Commission amended sentencing guideline    3E1.1 to permit an

            additional  one-level reduction  in  base  offense level  for

            persons eligible for  the two-level reduction for  acceptance

            of  responsibility.    Rosa  sought to  reduce  his  sentence

            pursuant  to   the  amended  guideline,   claiming  that  the

            amendment  should  be applied  retroactively.   The  district

            court denied his request.   Because we have decided  that the

            amendment  in question  is  not retroactive,  see DeSouza  v.
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            United States, 995 F.2d  323, 324 (1st Cir. 1993),  we affirm
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            the district court's denial of Rosa's request for  a sentence

            reduction under amended   3E1.1.1

                      Affirmed.
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            1.  On July 9, 1993, this court issued an order directing the
            district court  to take action  on Rosa's untimely  notice of
            appeal, which we treated as a request to extend the time  for
            filing a  notice of appeal.   As we indicate  in our opinion,
            under DeSouza  the judgment  of the  district  court must  be
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            affirmed on the merits.   Therefore, the jurisdictional issue
            presented by Rosa's  untimely notice  of appeal  need not  be
            addressed, see Amann v. Stow School System, 982 F.2d 644, 648
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            n.2  (1st  Cir.  1992)   (declining  to  consider  whether  a
            technically deficient notice of appeal conferred jurisdiction
            on the court since the district court's judgment was affirmed
            on the merits), and we hereby vacate our July 9th order.