United States v. Baker

USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 98-1054



                         UNITED STATES,



                           Appellee,



                               v.



                          ELWIN BAKER,



                     Defendant, Appellant.







          APPEAL FROM THE UNITED STATES DISTRICT COURT



                   FOR THE DISTRICT OF MAINE



          [Hon. D. Brock Hornby, U.S. District Judge]







                             Before



                      Selya, Circuit Judge,

                Campbell, Senior Circuit Judge,

                   and Lynch, Circuit Judge.









     Joseph S. Berman and Berman & Dowell on brief for appellant.

     Jay P. McCloskey, United States Attorney, Jonathan A. Toof and

F. Mark Terison, Assistant United States Attorneys, on brief for

appellee.











July 1, 1998













            Per Curiam.  Upon careful review of the briefs and

    record, we perceive no merit in defendant's appellate

    arguments.  Particularly, the district court considered the

    appropriate factors in revoking defendant's supervised release

    and in imposing a term of imprisonment.  We will not second-

    guess the district court's assessment of witness credibility

    and resolution of the conflicting evidence as to the time of

    the sexual assault.  The upward departure was amply supported

    by the record and reasonable in degree.  We decline to address

    the constitutional arguments that defendant raises for the

    first time on appeal.

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