United States v. Falcone ( 1995 )

USCA1 Opinion

        December 7, 1995        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT











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        No. 95-1026



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                   JOSEPH FALCONE,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                            FOR THE DISTRICT OF MAINE



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



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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            William A. Hahn and Hahn & Matkov on brief for appellant.
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            Jay  P.  McCloskey,  United  States  Attorney,  Helene  Kazanjian,
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        Assistant U.S.  Attorney,  and  George  T.  Dilworth,  Assistant  U.S.
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        Attorney, on brief for appellee.





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                      Per Curiam.  Having carefully reviewed the parties'
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            briefs and the record,  we affirm the judgment.   Contrary to



            appellant's suggestion, the Sentencing  Guidelines explicitly



            provide   that   "uncounseled  misdemeanor   sentences  where



            imprisonment  was not  imposed"  are "to  be  counted in  the



            criminal  history   score."     U.S.S.G.      4A1.2  comment.



            (backg'd).  Falcone's  constitutional challenge was  rejected



            by the Supreme Court  in Nichols v. United States, 114 S. Ct.
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            1921 (1994).   Accordingly,  the district court  committed no



            error,  much  less  plain  error,  in  computing  appellant's



            criminal history score.       Affirmed.  See Loc. R. 27.1.
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