September 1, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1696
UNITED STATES,
Appellee,
v.
WILLIAM ROSA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
William Rosa on brief pro se.
Per Curiam. William Rosa was sentenced on January
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.
United States, 995 F.2d 323, 324 (1st Cir. 1993), we affirm
the district court's denial of Rosa's request for a sentence
reduction under amended 3E1.1.1
Affirmed.
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
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
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.