United States v. Viera-Rivera ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]


                           UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

                                ____________________



       No. 96-2011


                                   UNITED STATES,


                                      Appellee,


                                         v.


                                JOSE A. VIERA-RIVERA,

                      A/K/A CHEITO, A/K/A ANDRES GARCIA-RIVERA,


                                Defendant, Appellant.


                                ____________________



                    APPEAL FROM THE UNITED STATES DISTRICT COURT


                           FOR THE DISTRICT OF PUERTO RICO


                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]


                                ____________________


                                       Before


                               Selya, Boudin and Lynch,

                                   Circuit Judges.


                                ____________________


            Rafael Anglada-Lopez on brief for appellant.

            Guillermo
Gil, United States Attorney,    Jeanette
Mercado-Rios,

       Assistant United States Attorney, and  Jose
A.
Quiles-Espinosa, Senior

       Litigation Counsel, on brief for appellee.



                                ____________________


                                    July 23, 1997

                                ____________________






                 Per
Curiam. Upon careful review of the record and the


            parties' briefs, we find no reason to overturn defendant's


            conviction or sentence.


                 The identification evidence was properly admitted and


            sufficient. We agree with the district court that the


            witness's time and opportunity to observe her assailant in the


            car, her description of him, her certainty, and the relatively


            prompt identification rendered the identification reliable


            enough to place it before the jury.  See Neil v. Biggers, 409


            U.S. 188, 199-200 (1972).


                 Defendant's additional objections to the testimony of the


            fingerprint expert are meritless. The expert's qualifications


            were stipulated, and the testimony adequately explained the


            recovery and comparison of the prints.


                 Even assuming we would have jurisdiction to review the


            denial of a downward departure, we would find no error. The


            district court expressly acknowledged its authority to depart,


            fully considered defendant's capacity (including the role of


            his drug addiction), and acted within its discretion to


            determine that no decrease was warranted under U.S.S.G. SS


            5H1.4, 5K2.0 & 5K2.13, whether those sections be read


            separately or together.


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








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