United States v. Burke, 1st Cir. (1996)

USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 96-1526
UNITED STATES,
Appellee,
v.
DOUGLAS M. BURKE,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]

___________________
____________________
Before
Selya, Boudin and Lynch,

Circuit Judges.
______________
____________________
Bjorn Lange, Assistant Federal Defender, on Anders brief.

___________
______
Douglas M. Burke on brief pro se.
________________
Paul M. Gagnon, United States Attorney,
______________
Assistant United
States Attorney,
and Peter E. Papps, Fi

______________
on Motion for
Summary Disposit
for appellee.
____________________
December 2, 1996
____________________
Per Curiam.
___________
In
1991, defendant
Douglas
Burke
was
convicted in
federal
later sentenced to
court on
28 months
supervised release.
counterfeiting
in prison and
state
prison.
the federal
after finding
conditions of
court revoked
him to a consecutive,
of
Upon his plea of guilty
state court sentenced him to a
In turn,
thereby violated the
three years
and
In 1995, while on supervised release, he
was arrested on state fraud charges.
to such charges, the
charges
that
defendant had
his supervised
his release status
term in
release,
and sentenced
24-month term in federal prison.
The
validity of this latter sentence is the sole issue on appeal.
Defendant's counsel,
presents
no
withdraw
accompanied by
espousing the
voicing the belief that the appeal
nonfrivolous
issues,
an
Anders
______
same view, has moved
has filed
brief; the
motion
to
government,
for summary disposition.
Defendant has filed a pro se
brief and an opposition to
the
government's motion.
We agree that the
violated
appeal is frivolous.
the conditions
disputed, and
of
his supervised
the sentence imposed was
statutory and guideline ranges.
U.S.S.G.
7B1.4(a).
defendant's pro
The
sole
se brief--that
in fact,
not
within the governing
contention
3583(e)(3);
advanced
the federal court
in
relied on
The record reveals that the
base its sentence
-2-
defendant
release is
See 18 U.S.C.
___
false information--is misplaced.
state court did,
That
partly on
the
expectation that further
imprisonment would result from
the
federal
That
was
not
no moment;
the
proceedings.
memorialized
in the
matter was brought
the
plea
expectation
agreement is
to the state
imposition of sentence.
advised (contrary
such
of
court's attention prior
And the federal
to defendant's
to
court was not
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.
consecutive sentencing,
e.g.,
____
United States
_____________
7B1.3(f), with its call for
is binding on the
v. Throneburg,
__________
87
Cir.), cert. denied, 65 U.S.L.W. 3341

_____________
v.
Caves, 73
_____
F.3d 823,
United States v. Hill,

_____________
____
824 (8th
lower court, see,

___
F.3d 851,
(1996); United States

_____________
Cir. 1996)
(per curiam);
48 F.3d 228, 230-32 (7th
see also United States v. O'Neil, 11 F.3d 292, 301

________ _____________
______
Cir. 1993);
F.3d
compare, e.g.,
_______ ____
854 (6th
United States v.
_____________
Cir. 1995);
n.11 (1st
Alexander, ___
_________
___, 1996 WL 656094 (5th Cir. 1996) (discussing
n.6); United States

_____________
v. Gondek, 65 F.3d 1,
______
(same), the matter is without significance
5G1.3
2 (1st Cir. 1995)
here.
The record
does not suggest that
the district court believed it
alternative but to impose a consecutive sentence.
Throneburg, 87 F.3d at 854.

__________
19
F.3d
1099, 1100-01
consecutive
sentence
See, e.g.,
___ ____
Compare United States v. Sparks,

_______ _____________
______
(6th Cir.
was
had no
1994).
obviously
Imposition
warranted
under
of a
the
circumstances--particularly given the rationale for the state
-3-
court
sentence.
And
defendant acknowledged
below that
consecutive sentence was appropriate.
Defense counsel's
motion to withdraw
is granted,
________________________________________________________
appellee's motion for summary disposition is granted, and the

_____________________________________________________________
judgment is affirmed.
_____________________
-4-

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USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

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

Selya, Boudin and Lynch,

Bjorn Lange, Assistant Federal Defender, on Anders brief.

and Peter E. Papps, Fi

Upon his plea of guilty

state court sentenced him to a

thereby violated the

In 1995, while on supervised release, he

was arrested on state fraud charges.

to such charges, the

his release status

24-month term in federal prison.

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

voicing the belief that the appeal

same view, has moved

for summary disposition.

Defendant has filed a pro se

brief and an opposition to

We agree that the

the sentence imposed was

statutory and guideline ranges.

within the governing

the federal court

The record reveals that the

base its sentence

false information--is misplaced.

state court did,

expectation that further

imprisonment would result from

matter was brought

court's attention prior

And the federal

court was not

agreement itself referred to the matter.

7B1.3(f), with its call for

Cir.), cert. denied, 65 U.S.L.W. 3341

United States v. Hill,

lower court, see,

(1996); United States

48 F.3d 228, 230-32 (7th

see also United States v. O'Neil, 11 F.3d 292, 301

___, 1996 WL 656094 (5th Cir. 1996) (discussing

n.6); United States

(same), the matter is without significance

2 (1st Cir. 1995)

does not suggest that

the district court believed it

alternative but to impose a consecutive sentence.

Throneburg, 87 F.3d at 854.

Compare United States v. Sparks,

circumstances--particularly given the rationale for the state

consecutive sentence was appropriate.

appellee's motion for summary disposition is granted, and the

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