United States v. Hersch

USCA1 Opinion









September 6, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

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No. 95-1842

UNITED STATES,

Appellee,

v.

RICHARD M. HERSCH,

Defendant, Appellant.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge] ___________________

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Before

Torruella, Chief Judge, ___________
Cyr and Stahl, Circuit Judges. ______________

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Malcolm J. Barach on brief for appellant. _________________
Donald K. Stern, United States Attorney, and Mark W. _________________ ________
Pearlstein, Assistant United States Attorney. __________


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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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