United States v. Roy ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-1697



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                     DONALD ROY,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                            FOR THE DISTRICT OF MAINE



                     [Hon. Morton A. Brody, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Cyr and Stahl, Circuit Judges.
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            Tina Schneider on brief for appellant.
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            Jay P. McCloskey, United States  Attorney, Margaret D.  McGaughey,
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        Assistant  U.S. Attorney, and  Gregory A. Campbell,  Special Assistant
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        U.S. Attorney, on brief for appellee.





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                                    March 12, 1996

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                 Per  Curiam.   Defendant Donald  Roy  contends that  the
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            district court erred in failing  to make a downward departure



            under    5K2.13 of  the United  States Sentencing  Guidelines



            (for  diminished capacity) and  under U.S.S.G.    5K2.16 (for



            voluntary disclosure).   Roy's failure to request  a downward



            departure  under  either  section   in  the  district   court



            forecloses  our consideration of the issue. See United States
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            v. Field, 39  F.3d 15, 21 (1st Cir. 1994),  cert. denied, ___
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            U.S. ___, 115 S. Ct. 1806 (1995).



                 To   the  extent  Roy   is  arguing  that   he  received



            ineffective assistance  of counsel because  his attorney  did



            not  move  for  a  departure  under      5K2.13,  5K2.16, the



            argument  is without  merit,  for there  was  scant, if  any,



            evidentiary support for  a departure.  To the  extent Roy may



            be  premising an  ineffective assistance  claim on  counsel's



            failure adequately to develop the  record, the matter is  not



            presently reviewable.   See  United States  v. Jadusingh,  12
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            F.3d 1162, 1169-70 (1st Cir. 1994).



                 The sentence is summarily affirmed. See Loc. R. 27.1.
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