United States v. Burke ( 1996 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1526



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                  DOUGLAS M. BURKE,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE



                   [Hon. Joseph A. DiClerico, U.S. District Judge]
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                                        Before



                               Selya, Boudin and Lynch,

                                   Circuit Judges.
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            Bjorn Lange, Assistant Federal Defender, on Anders brief.
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            Douglas M. Burke on brief pro se.
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            Paul M. Gagnon, United States Attorney,  and Peter E. Papps, First
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        Assistant United  States Attorney,  on Motion for  Summary Disposition

        for appellee.







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                                   December 2, 1996

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                 Per  Curiam.    In  1991, defendant  Douglas  Burke  was
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            convicted in  federal  court on  counterfeiting  charges  and



            later sentenced to  28 months  in prison and  three years  of



            supervised release.  In 1995, while on supervised release, he



            was arrested on state fraud charges.  Upon his plea of guilty



            to such charges, the  state court sentenced him to a  term in



            state  prison.   In turn,  after finding  that  defendant had



            thereby violated the  conditions of  his supervised  release,



            the federal  court revoked  his release status  and sentenced



            him to a consecutive,  24-month term in federal prison.   The



            validity of this latter sentence is the sole issue on appeal.



                 Defendant's counsel,  voicing the belief that the appeal



            presents  no  nonfrivolous  issues,  has filed  a  motion  to



            withdraw  accompanied by  an  Anders  brief; the  government,
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            espousing the  same view, has moved  for summary disposition.



            Defendant has filed a pro se  brief and an opposition to  the



            government's motion.



                 We agree that the  appeal is frivolous.  That  defendant



            violated  the conditions  of  his supervised  release is  not



            disputed, and  the sentence imposed was  within the governing



            statutory and guideline ranges.   See 18 U.S.C.   3583(e)(3);
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            U.S.S.G.     7B1.4(a).    The  sole  contention  advanced  in



            defendant's pro  se brief--that  the federal court  relied on



            false information--is misplaced.  The record reveals that the



            state court did,  in fact,  base its sentence  partly on  the







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            expectation that further  imprisonment would result from  the



            federal   proceedings.    That   such  expectation   was  not



            memorialized  in the  plea  agreement is  of  no moment;  the



            matter was brought  to the state  court's attention prior  to



            the  imposition of sentence.   And the federal  court was not



            advised (contrary  to defendant's  suggestion) that  the plea



            agreement itself referred to the matter.



                 In  turn, while we  express no  opinion on  the parties'



            shared assertion  that U.S.S.G.   7B1.3(f), with its call for



            consecutive sentencing,  is binding on the  lower court, see,
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            e.g.,  United States  v. Throneburg,  87  F.3d 851,  854 (6th
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            Cir.), cert.  denied, 65 U.S.L.W. 3341  (1996); United States
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            v.  Caves, 73  F.3d 823,  824 (8th  Cir. 1996)  (per curiam);
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            United States v. Hill,  48 F.3d 228, 230-32 (7th  Cir. 1995);
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            see also United States v. O'Neil, 11 F.3d 292, 301  n.11 (1st
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            Cir. 1993);  compare, e.g.,  United States v.  Alexander, ___
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            F.3d  ___, 1996 WL 656094 (5th Cir. 1996) (discussing   5G1.3



            n.6); United States  v. Gondek, 65 F.3d 1,  2 (1st Cir. 1995)
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            (same), the matter is without significance  here.  The record



            does not suggest that  the district court believed it  had no



            alternative but to impose a consecutive sentence.  See, e.g.,
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            Throneburg, 87 F.3d at 854.  Compare United States v. Sparks,
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            19  F.3d  1099, 1100-01  (6th Cir.  1994).   Imposition  of a



            consecutive  sentence  was   obviously  warranted  under  the



            circumstances--particularly given the rationale for the state







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            court  sentence.   And  defendant acknowledged  below that  a



            consecutive sentence was appropriate.



                 Defense  counsel's   motion  to  withdraw   is  granted,
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            appellee's motion for summary disposition is granted, and the
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            judgment is affirmed.
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