
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                               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.                                         -2-
