US v. Viera-Rivera
Case Date: 07/23/1997
Court: United States Court of Appeals
Docket No: 96-2011
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[NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-2011 UNITED STATES, Appellee, v. JOSE A. VIERA-RIVERA, A/K/A CHEITO, A/K/A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- |