United States v. Knowlton ( 1994 )

USCA1 Opinion

          January 20, 1994      [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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          No. 93-1735

            


                                    UNITED STATES,

                                      Appellee,

                                          v.

                                 THOMAS F. KNOWLTON,

                                Defendant, Appellant.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Gene Carter, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge.
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                            Cyr and Stahl, Circuit Judges.
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               Arlene C. Halliday on brief for appellant.
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               Jay P.  McCloskey, United  States Attorney,  and Michael  M.
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          DuBose, Assistant United  States Attorney,  on Motion to  Dismiss
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          Appeal for appellee.



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                      Per Curiam.   The government has moved  for summary
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            disposition of this appeal under Loc. R. 27.1.  We agree that

            there is no  substantial issue presented,  and we affirm  the

            judgment below.

                      Defendant pleaded guilty to a one-count  indictment

            charging  possession of  a firearm  by a  convicted  felon in

            violation  of 18  U.S.C.      922(g)(1),  924(a)(2).    Under

            U.S.S.G.  2K2.1(a)(2),  his base  offense level  was properly

            calculated at Level 24 "if [he] had at least two prior felony

            convictions of  either a  crime of violence  or a  controlled

            substance offense."   The presentence  report ("PSI")  listed

            two such convictions --  a drug offense  and a burglary of  a

            dwelling.       Defendant    initially   objected    to   the

            characterization  of the burglary as a  crime of violence and

            its use for  sentence enhancement purposes.   Defense counsel

            later   withdrew   these   objections,  however,   and   with

            defendant's  approval, conceded the base offense level of 24.



                      Defendant now attempts to reverse the effect of his

            voluntary  concession  by  arguing that  the  court committed

            plain error in omitting from  its findings of fact an express

            citation  to  the  PSI paragraph  which  listed  the burglary

            conviction.   The argument erroneously equates the absence of

            a numerical citation with a failure to make factual findings.

            The  court   specifically  found  the   relevant  fact,  that



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            defendant  had two prior  qualifying convictions.   It relied

            upon the defendant's concession, expressly reiterating  among

            its  written  findings  that  defendant  had   withdrawn  his

            objections to  considering the  burglary for  the purpose  of

            sentence  enhancement.   In  addition,  the court's  judgment

            adopted the factual findings of the PSI. "As a general rule a

            trial court lawfully  may make implicit findings  with regard

            to sentencing  matters, incorporating  by reference  suitably

            detailed suggestions limned in the PSI  Report or advanced by

            a  party."   United States  v. Tavano,  1993 U.S.  App. LEXIS
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            33879, at *18  (1st Cir. Dec. 29,  1993) (citing cases).   No

            particular citation form is required.

                      Accordingly, we grant the government's motion under

            Loc. R. 27.1 and affirm the judgment below.  
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