[NOT FOR PUBLICATION]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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