[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 96-1666

UNITED STATES,

Appellee,

v.

RUFINO SANTOS, A/K/A EL FILIPINO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before

Selya, Boudin and Lynch, Circuit Judges.

Irma R. Valldejuli on brief for appellant.

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

November 26, 1996 Per Curiam. Upon careful review of the briefs and record, we find no merit in defendant's appellate argument, and so we affirm the sentence imposed by the district court.

Nothing in the plea agreement or the facts of this case required the government to move for a downward departure under U.S.S.G. 5K1.1, and there was no suggestion of prosecutorial misconduct. In these circumstances, the district court had no authority to consider such a departure.

See Wade v. United States, 504 U.S. 181, 185-86 (1992).

Because the merits of this appeal are easily resolved in the government's favor, we do not address the government's challenge to our jurisdiction. See Kotler v. American Tobacco Co., 926 F.2d 1217, 1221 (1st Cir. 1990).

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