US v. Pickering, No. 10-1912 (1st Cir. 2011)

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Not For Publication in West's Federal Reporter United States Court of Appeals For the First Circuit No. 10-1747 UNITED STATES OF AMERICA, Appellee, v. PATRICK McKEEN, Defendant,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. affirm the defendant's sentence. On this basis, we summarily See 1st Cir. R. 27.0(c). Affirmed. -2-

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