United States v. Burton , 240 F. App'x 559 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES LINDBERGH BURTON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis III, Senior
District Judge. (1:06-cr-00258-TSE)
Submitted: May 25, 2007 Decided: July 9, 2007
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas D. Hughes, IV, THOMAS D. HUGHES, IV, P.C., Reedville,
Virginia, for Appellant. Robert Charles Erickson, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
From May 2003 through December 2003, Charles Lindbergh
Burton, Jr. and a co-conspirator recruited eleven individuals to
file false insurance claims with their auto insurers. As a result,
Burton was charged in a one count information with health care
fraud, in violation of 18 U.S.C. § 1347 (2000). Pursuant to a plea
agreement, Burton plead guilty to the sole count in the information
on June 28, 2006.
Burton appeared for sentencing on September 22, 2006. At
the time of sentencing, Burton was in custody due to similar but
unrelated charges from the State of Maryland. The district court
sentenced Burton within the advisory guidelines to seventy months’
imprisonment, consecutive to any sentence he was then serving.
Burton timely noted his appeal. On appeal, Burton’s counsel has
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), in which he raises two issues.
First, Burton questions whether he waived his right to
appeal his sentence and conviction. Although Burton’s plea
agreement contained a waiver provision and the district court found
his plea knowing and voluntary, the Government has not filed a
motion in this case seeking to invoke his waiver. Accordingly, the
waiver provision does not bar Burton’s appeal. See United States
v. Blick, 408 F.3d 162, 168 (4th Cir. 2005) (stating that where the
government elects not to raise waiver, this Court may decline to
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consider it) (citing United States v. Brock, 211 F.3d 88, 90 n.1
(4th Cir. 2000)).
Second, Burton asserts that the district court erred in
not running his sentence concurrent with the sentence he was
already serving. However, as the sentence he was already serving
at the time of sentencing on his federal conviction was an
unrelated state conviction, the district court was free to impose
a concurrent, partially concurrent, or consecutive sentence on
Burton. See U.S.S.G. § 5G1.3 (2005). Accordingly, Burton’s second
contention is without merit.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Burton, in writing, of his right to
petition the Supreme Court of the United States for further review.
If Burton requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Burton.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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