United States v. Hersch ( 1996 )

USCA1 Opinion

          September 6, 1996     [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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          No. 95-1842



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  RICHARD M. HERSCH,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Rya W. Zobel, 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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               Malcolm J. Barach on brief for appellant.
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               Donald  K.  Stern,  United  States  Attorney,  and  Mark  W.
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          Pearlstein, Assistant United States Attorney.
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                 Per  Curiam.   Upon  careful  review of  the  briefs and
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            record,  we conclude that the sentence imposed was proper for



            the reasons  stated by the district  court.  We add  only the



            following comments.



                 1.   Contrary to defendant's  arguments, the  transcript



            of  the  sentencing hearing  shows  that  the district  court



            adequately considered  all the  circumstances.   Further, the



            district  court  acted within  its discretion  in determining



            that no  downward departure was warranted and that a sentence



            at  the high end of the applicable range was appropriate.  We



            will not review  those determinations.  See United  States v.
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            Grandmaison, 77 F.3d 555,  560 (1st Cir. 1996) (discretionary
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            decision not  to depart); United States  v. Vega-Encarnacion,
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            914 F.2d  20, 25 (1st  Cir. 1990) (discretionary  decision to



            sentence within range), cert. denied, 499 U.S. 977 (1991).
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                 2.   The  record provides  no  support  for  defendant's



            assertion that the prosecutor acted in bad faith in declining



            to file a motion under U.S.S.G.    5K1.1.  See Wade v. United
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            States, 504 U.S. 181, 187 (1992); United States v. Catalucci,
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            36 F.3d 151, 153 (1st Cir. 1994).



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