
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          September 6, 1996     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                 ________   ___                                         -2-
