United States v. Pickering ( 2011 )

Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1747
UNITED STATES OF AMERICA,
Appellee,
v.
PATRICK McKEEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Torruella, Selya and Lipez,
Circuit Judges.
Mark E. Howard and Howard & Ruoff, PLLC on brief for
appellant.
Seth R. Aframe, Assistant United States Attorney, and Michael
J. Gunnison, Attorney (acting under authority conferred by 28
U.S.C. § 515), on brief for appellee.
May 11, 2011
Per Curiam. This is a single-issue sentencing appeal.
Viewing the record as a whole, we conclude that the district court
could supportably find — as it did — that the prosecutor's decision
not to move for an additional reduction in the defendant's offense
level for timely acceptance of responsibility, see USSG §3E1.1(b),
was neither irrational nor motivated by an unconstitutional reason.
The decision was, therefore, within the prosecutor's wide
discretion, see, e.g., United States v. Beatty, 538 F.3d 8, 15 (1st
Cir. 2008), and the district court did not err in refusing to
compel the prosecutor to make such a motion.
We need go no further. On this basis, we summarily
affirm the defendant's sentence. See 1st Cir. R. 27.0(c).
Affirmed.
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