USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1010
UNITED STATES,
Appellee,
v.
JOSEPH BURKE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Lynch, Circuit Judge.
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Rosemary Curran Scapicchio for appellant.
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Dina Michael Chaitowitz, Assistant United States Attorney, with
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whom Donald K. Stern, United States Attorney, was on brief for the
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United States.
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September 29, 1995
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CAMPBELL, Senior Circuit Judge. Defendant Joseph
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Burke appeals from an order of the United States District
Court for the District of Massachusetts (the "Massachusetts
federal court") sentencing him to imprisonment for ten years,
this sentence to run consecutively to another federal
sentence imposed by the United States District Court for the
Middle District of Florida (the "Florida federal court"),
which Burke is now serving. Burke committed the instant drug
offense while serving the earlier sentence. Section 5G1.3(a)
of the United States Sentencing Guidelines requires that a
consecutive sentence be imposed for offenses committed while
a defendant is serving another term of imprisonment.
At his sentencing hearing before the Massachusetts
federal court, Burke argued that his ongoing Florida federal
court sentence was illegal.1 Burke urged the Massachusetts
federal court to recognize this purported illegality, and use
its discretion to depart from section 5G1.3(a)'s consecutive
sentence requirement. Burke contended that a concurrent
sentence would ameliorate the prior error. The Massachusetts
federal court rejected Burke's argument and imposed a
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1. He argued that the Florida federal court erred in
sentencing him to consecutive sentences. Burke had committed
six armed bank robberies in Florida. Two of the robberies
were committed after implementation of the Sentencing
Guidelines, while four robberies were committed before the
Sentencing Guidelines went into effect. The Florida federal
court sentenced Burke to 63 months on the Guideline counts
and a consecutive term of 25 years on the non-Guideline
counts. Burke did not appeal from this sentence.
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consecutive sentence stating: "I disagree that I have the
discretion . . . . A cognate United States District Court
has acted. I don't sit in judgment on its judgments." On
appeal from the latter sentence, Burke claims that the
court's belief that it lacked discretion to impose a
concurrent sentence in these circumstances was erroneous.
We disagree. Section 5K2.0 of the Sentencing
Guidelines states that a court may depart from the Guideline
sentence if ". . . there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission . . . ." The
Massachusetts federal court correctly ruled that the mere
claimed illegality of a prior sentence imposed by another
federal court presents by itself no such circumstance.
The proper way to challenge the legality of a prior
federal sentence would be to bring an appropriate direct or
collateral attack in the federal district court that had
jurisdiction over that sentence. See Custis v. United
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States, 114 S. Ct. 1732, 1739 (1994). Burke argues that he
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did not ask the Massachusetts federal court to vacate the
sentence imposed by the Florida federal court, but simply
pointed out the sentence's illegality in order to encourage
the Massachusetts federal court to use its discretion to
order a concurrent sentence. Necessarily, however, Burke's
contention would require the Massachusetts federal court to
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ascertain collaterally whether the sentence of the Florida
federal court which he is now serving was illegal. The court
correctly declined to make such an inquiry.
In United States v. Paleo, 967 F.2d 7, 11 (1st Cir.
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1992), this Court held that "a federal defendant may
challenge, in a sentencing proceeding, the constitutional
validity of past convictions, used to increase his federal
sentence." However, Paleo was narrowed by United States v.
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Isaacs, 14 F.3d 106, 108-110 (1st Cir. 1994). In holding
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that Comment 6 to section 4A1.2 of the Sentencing Guidelines
no longer expressly authorized the collateral review of prior
convictions used in calculating a defendant's criminal
history category, the Isaacs court also ruled that the
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Constitution did not guarantee the right to review prior
convictions except those found to be "presumptively void."2
Id. at 110-112. This holding in Isaacs was further narrowed
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by the Supreme Court in Custis, 114 S. Ct. at 1738. In
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Custis, the Court refused "to extend the right to attack
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collaterally prior convictions used for sentence enhancement
[under the Armed Career Criminal Act, 18 U.S.C. 924(e)]
beyond the right to have appointed counsel . . . ." Id. See
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2. The Isaacs court found that "presumptively void"
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convictions are those in which a constitutional violation is
obvious on the face of the prior conviction and those with
"structural errors" which are so serious as to undermine the
reliability of an entire criminal proceeding. 14 F.3d at
111-112.
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also United States v. Munoz, 36 F.3d 1229, 1237 (1st Cir.
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1994); United States v. Cordero, 42 F.3d 697, 701 (1st Cir.
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1994). Although Custis and Paleo involved challenges to
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predicate convictions under the Armed Career Criminal Act,
while Isaacs and the present case involve challenges to
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predicate convictions under the enhancement and consecutive
sentencing provisions of the Sentencing Guidelines, the
underlying issues are much the same. In particular, the
Custis Court emphasized that "when Congress intended to
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authorize collateral attacks on prior convictions at the time
of sentencing, it knew how to do so." 114 S. Ct. at 1736.
Hence, absent specific language allowing collateral attack,
none is permitted in a sentencing proceeding except as
respects the appointment of counsel. Id. Because the
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Guidelines and related materials make no provision for a
collateral attack upon the prior conviction forming a
predicate sentence under section 5G1.3(a), Burke had no right
at the sentencing hearing held below to challenge
collaterally the legality of the Florida federal court's
sentence.
To rule otherwise would hopelessly complicate
sentencing under the federal Guidelines. In Custis,
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referring to collateral review of state convictions, the
Supreme Court noted that such an outcome "would require
sentencing courts to rummage through frequently nonexistent
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or difficult to obtain state court transcripts or records
that may date from another era, and may come from any one of
the 50 States." Id. at 1738-1739. For federal sentences,
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the records may be more accessible, but the complexity and
delay would nonetheless be considerable. Moreover, to
reexamine the legality of a sentence imposed in another
federal jurisdiction without participation by the parties
involved in the earlier case could easily lead to error, and
would strain the relations between coordinate courts in the
federal system. Additionally, the finality doctrine that
serves to conserve scarce judicial resources and promote
efficiency would be compromised. Quoting its prior opinion
in United States v. Addonizio, 442 U.S. 178, 184 n.11 (1979),
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the Custis Court cautioned that "'[i]nroads on the concept of
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finality tend to undermine confidence in the integrity of our
procedures' and inevitably delay and impair the orderly
administration of justice." 114 S. Ct. at 1739.
If, as alleged, Burke believed that his Florida
federal court sentence was illegal, his most obvious course
was to have pursued his direct appeal remedy. Having failed
to do so, Burke may now find it harder to challenge the
legality of that sentence, although in some circumstances he
may be able to do so. Title 28 U.S.C. 2255, for example,
could on an appropriate occasion afford a remedy, although we
are not in a position to know whether Burke would fit within
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that statute here.3 At Burke's sentencing hearing, the
Massachusetts federal court thoughtfully indicated that "if
through some sort of collateral or direct attack [Burke's
counsel] can tip over or get a recomputation of the Florida
sentence, then . . . I would revisit the issue of the timing
and the credit to be adopted in this sentence." This offer
was consonant with that of the Supreme Court in Custis, 114
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S. Ct. at 1739.
Affirmed.
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3. We emphasize that regardless of whether Burke is able to
find a way to challenge the legality of his prior sentence,
he may not challenge its legality in the present
Massachusetts federal court sentencing proceeding, involving
a different crime. See United States v. Field, 39 F.3d 15,
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18-19 (1st Cir. 1994) (defendant not permitted to
collaterally attack prior state court conviction offered as a
predicate for another sentence notwithstanding the absence of
any means to attack it either in state court or on federal
habeas corpus review).
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