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[NOT FOR PUBLICATION]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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