[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1054

UNITED STATES,

Appellee,

v.

ELWIN BAKER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge.

Joseph S. Berman and Berman & Dowell on brief for appellant. Jay P. McCloskey, United States Attorney, Jonathan A. Toof and F. Mark Terison, Assistant United States Attorneys, on brief for appellee.

July 1, 1998

Per Curiam. Upon careful review of the briefs and record, we perceive no merit in defendant's appellate arguments. Particularly, the district court considered the appropriate factors in revoking defendant's supervised release and in imposing a term of imprisonment. We will not second- guess the district court's assessment of witness credibility and resolution of the conflicting evidence as to the time of the sexual assault. The upward departure was amply supported by the record and reasonable in degree. We decline to address the constitutional arguments that defendant raises for the first time on appeal. Affirmed. See 1st Cir. Loc. R. 27.1.