United States v. Roy

78 F.3d 577, 1996 WL 109461

Opinion

78 F.3d 577

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
Donald ROY, Defendant, Appellant.

No. 95-1697.

United States Court of Appeals, First Circuit.

March 12, 1996.

Tina Schneider on brief for appellant.

Jay P. McCloskey, United States Attorney, Margaret D. McGaughey, Assistant U.S. Attorney, and Gregory A. Campbell, Special Assistant U.S. Attorney, on brief for appellee.

Before TORRUELLA, Chief Judge, CYR and STAHL, Circuit Judges.

PER CURIAM.

Defendant Donald Roy contends that the district court erred in failing to make a downward departure under § 5K2.13 of the United States Sentencing Guidelines (for diminished capacity) and under U.S.S.G. § 5K2.16 (for voluntary disclosure). Roy's failure to request a downward departure under either section in the district court forecloses our consideration of the issue. See United States v. Field, 39 F.3d 15, 21 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1806 (1995).

To the extent Roy is arguing that he received ineffective assistance of counsel because his attorney did not move for a departure under §§ 5K2.13, 5K2.16, the argument is without merit, for there was scant, if any, evidentiary support for a departure. To the extent Roy may be premising an ineffective assistance claim on counsel's failure adequately to develop the record, the matter is not presently reviewable. See United States v. Jadusingh, 12 F.3d 1162, 1169-70 (1st Cir.1994).

The sentence is summarily affirmed. See Loc. R. 27.1.