United States v. Picardi ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 97-1558





                                    UNITED STATES,



                                      Appellee,



                                          v.



                      RICHARD JOSEPH PICARDI, A/K/A FAT RITCHIE,



                                Defendant, Appellant.



                                 ____________________





                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Reginald C. Lindsay, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
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                              Cyr, Senior Circuit Judge,
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                              and Boudin, Circuit Judge.
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                                 ____________________



            John J. Barter on brief for appellant.
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            Donald K. Stern, United  States Attorney, and  James C. Rehnquist,
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        Assistant United States Attorney, on brief for appellee.





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                                   December 9, 1997

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                 Per Curiam.   Upon  careful review,  we cannot  conclude
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            that the district court misunderstood its authority to depart



            under  U.S.S.G.     5H1.4.   The  district  court's comments,



            fairly read, indicate only that the departure was denied as a



            matter of  discretion.  That  exercise of  discretion is  not



            subject  to appellate review.   See United States v. LeBlanc,
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            24 F.3d 340, 348 (1st Cir. 1994).



                 Further, the adjustments under  both U.S.S.G.   3B1.1(b)



            (managerial   role   in   the   offense),  and   U.S.S.G.



            2B1.1(b)(4)(B)  (business  of  receiving and  selling  stolen



            property) did  not effect an  improper double counting.   See
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            United States v. Reeves, 83 F.3d 203, 208 (8th Cir. 1996).
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                 Affirmed.  See 1st Cir. Loc. R. 27.1.
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