[NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT









                                 ____________________





        No. 95-1499



                                    UNITED STATES,

                                      Appellee,



                                          v.



               SANTOS REYES-DE LA CRUZ, A/K/A SANTOS REYES-CRUZ, A/K/A,

                                    ANTONIO GERMAN

                                Defendant, Appellant.





                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO





                    [Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                               Torruella, Chief Judge.
                                          ___________

                          Boudin and Lynch, Circuit Judges.
                                            ______________



                                

                                 ____________________





            Benicio  Sanchez Rivera, Federal  Public Defender,  and Gustavo A.
            _______________________                                 __________

        Gelpi, Assistant Federal Public Defender, on brief for appellant.
        _____

            Guillermo  Gil, United  States Attorney,  Jose A. Quiles-Espinosa,
            ______________                            _______________________

        Senior Litigation Counsel,  Ernesto Hernandez-Milan, Assistant  United
                                    _______________________

        States  Attorney,  and  Nelson  Perez-Sosa,  Assistant  United  States
                                __________________

        Attorney, on brief for appellee.





                                 ____________________



                                   October 6, 1995

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                 Per Curiam.  Appellant-defendant Santos Reyes de la Cruz
                 __________



            appeals on the sole  ground that the district court  erred in



            denying  his  motion  for   a  downward  departure  from  the



            guideline sentencing  range pursuant to  4A1.3  of the United



            States  Sentencing  Guidelines (U.S.S.G.).    "It  is by  now



            axiomatic that  a criminal defendant cannot  ground an appeal



            on a sentencing court's  discretionary decision not to depart



            below  the  guideline  sentencing  range." United  States  v.
                                                       ______________



            Pierro, 32 F.3d 611, 619 (1st Cir. 1994),   cert. denied, ___
            ______                                      ____  ______



            U.S  ___,  115  S. Ct.   919  (1995).    There   is  appellate



            jurisdiction, however,  "where the decision not  to depart is



            based on  the sentencing  court's assessment  of its  lack of



            authority or power to depart." United States v. Morrison,  46
                                           _____________    ________



            F.3d 127, 130 (1st Cir. 1995).



                      In   determining   whether  the   sentencing  court



            mistakenly believed it lacked  authority to depart or "merely



            refused  to exercise  its discretionary  power to  depart, we



            consider  the  totality  of  the record  and  the  sentencing



            court's actions reflected therein." Morrison, 46 F.3d at 130.
                                                ________



            The transcript from the sentencing hearing, considered in its



            entirety, indicates that the district court was well aware of



            its authority to depart pursuant to U.S.S.G.  4A1.3.  



                      The  judge read aloud  the relevant  paragraph from



            that section which authorizes departures where a  defendant's



            criminal history category "significantly  over-represents the







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            seriousness of  a defendant's criminal  history . . .  ."  He



            then concluded  that such  circumstances were not  present in



            this  case.    That  determination was  an  exercise  of  his



            discretion and is not  reviewable on appeal.  See  Pierro, 32
                                                          ___  ______



            F.3d at  619 (explaining  that where  a judge  concludes that



            "'this circumstance of which [the defendant] speak[s] has not



            been shown to exist in this case,'" no appeal lies.).



                      The sentencing judge's statements that,  absent the



            guidelines, he  would have imposed  a less harsh  sentence do



            not reveal  a misapprehension about his  authority to depart.



            Rather, they  represent his correct understanding  that he is



            restrained by the guidelines in sentencing the defendant. 



                      We lack jurisdiction to review the district court's



            refusal to depart.  Therefore, the appeal is dismissed.  Loc.
                                                         _________



            R. 27.1.







                   







































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