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      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
                 United States Court of Appeals
                     For the First Circuit





No. 98-1918

                          UNITED STATES,

                            Appellee,

                                v.

                     JOSE DANIEL CRUZ-APONTE,

                      Defendant, Appellant.



           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Hector M. Laffitte, U.S. District Judge]



                              Before

                     Boudin, Circuit Judge,
                Campbell, Senior Circuit Judge,
                   and Stahl, Circuit Judge.
                                
                                
                                
                                
                                
     Jorge L. Arroyo-Alejandro on brief for appellant.
     Guillermo Gil, United States Attorney, and Nelson Perez-Sosa,
on Motion Requesting That The Instant Case Be Remanded, for
appellee.





April 21, 1999




                                
                                
            Per Curiam.  Upon consideration of the defendant's
  brief, the government's motion for remand and the record, we
  conclude that the district court did consider the substance of
  defendant's request for a departure under U.S.S.G. � 4A1.3. 
  The district court determined that no departure would be
  warranted in light of defendant's violent prior offenses and
  that decision is not reviewable.  See United States v. Leblanc,
  24 F.3d 340, 348 (1st Cir. 1994).  We need not decide whether
  the district court had authority to depart from the sentence
  specified in the Rule 11(e)(1)(C) plea agreement.
            Defendant's other claim--that his prior drug
  trafficking sentence was related to the instant offense and
  should not be counted as criminal history--is arguably
  preserved only for plain error review since the defendant did
  not expressly dispute his criminal history category in the pre-
  sentence report and the relatedness claim was offered in the
  district court only as an alternative ground for departure.  It
  could also be questioned whether the counting of the prior
  sentence could be regarded as plain error since there may be
  nothing in the present record that compels the inference that
  the sentence in no. 97cr011(pg) was for conduct that was "part"
  of the instant offense.  See U.S.S.G. � 4A1.2(a)(1) &
  application note 1.  (It is this provision, and not �
  4A1.2(a)(2) which is pertinent.  See United States v. Troncoso,
  23 F.3d 612, 616 (1st Cir. 1994).)
            Nevertheless, the government's motion for remand
  effectively waives any claim that the defendant did not
  adequately preserve the issue.  And while we doubt that there
  was plain error treating the two crimes as unrelated, this may
  or may not have been error and could have a significant effect
  on the sentence.  The government's efforts to assure that
  defendant is not sentenced beyond what he deserves is
  commendable.  Accordingly, the government's motion for remand
  is granted and the district court is requested to make findings
  as to whether the sentence in no. 97cr011(pg) was properly
  reflected in defendant's criminal history.  If the court
  concludes that the defendant's sentence should not be changed,
  we request that it supplement the record for this appeal with
  a written order stating its findings on the relatedness issue. 
  If it concludes that the sentence should be altered, it is free
  to modify the sentence and judgment accordingly, subject always
  to either side's right to seek further review.  We will retain
  jurisdiction of this appeal pending the proceedings on remand.
            It is so ordered.
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