USCA1 Opinion
September 6, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1842
UNITED STATES,
Appellee,
v.
RICHARD M. HERSCH,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Cyr and Stahl, Circuit Judges. ______________
____________________
Malcolm J. Barach on brief for appellant. _________________
Donald K. Stern, United States Attorney, and Mark W. _________________ ________
Pearlstein, Assistant United States Attorney. __________
____________________
____________________
Per Curiam. Upon careful review of the briefs and ___________
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. ___ ______________
Grandmaison, 77 F.3d 555, 560 (1st Cir. 1996) (discretionary ___________
decision not to depart); United States v. Vega-Encarnacion, _____________ ________________
914 F.2d 20, 25 (1st Cir. 1990) (discretionary decision to
sentence within range), cert. denied, 499 U.S. 977 (1991). ____________
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 ___ ____ ______
States, 504 U.S. 181, 187 (1992); United States v. Catalucci, ______ _____________ _________
36 F.3d 151, 153 (1st Cir. 1994).
Affirmed. See 1st Cir. Loc. R. 27.1. ________ ___
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