
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1010                                    UNITED STATES,                                      Appellee,                                          v.                                    JOSEPH BURKE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Lynch, Circuit Judge.                                         _____________                                 ____________________            Rosemary Curran Scapicchio for appellant.            __________________________            Dina Michael  Chaitowitz, Assistant United  States Attorney,  with            ________________________        whom Donald K.  Stern, United States  Attorney, was on  brief for  the             ________________        United States.                                 ____________________                                  September 29, 1995                                 ____________________                      CAMPBELL, Senior Circuit  Judge.  Defendant  Joseph                                _____________________            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                                            ____________________            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.                                          -2-                                          2            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                                                  ___  ______      ______            States,  114 S. Ct. 1732, 1739 (1994).   Burke argues that he            ______            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                                         -3-                                          3            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.                         _____________    _____            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.                                 _____                  _____________            Isaacs, 14 F.3d  106, 108-110  (1st Cir. 1994).   In  holding            ______            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                                     ______            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            ___                               ______            by  the Supreme  Court in  Custis, 114  S. Ct.  at 1738.   In                                       ______            Custis, the  Court refused  "to extend  the  right to  attack            ______            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                                                                 ___  ___                                            ____________________            2.  The   Isaacs  court   found  that   "presumptively  void"                      ______            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.                                         -4-                                          4            also United States  v. Munoz,  36 F.3d 1229,  1237 (1st  Cir.            ____ _____________     _____            1994); United States v.  Cordero, 42 F.3d 697, 701  (1st Cir.                   _____________     _______            1994).   Although  Custis  and Paleo  involved challenges  to                               ______      _____            predicate  convictions under  the Armed Career  Criminal Act,            while  Isaacs  and the  present  case  involve challenges  to                   ______            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            ______            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                                                       ___            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,                                                                  ______            referring to  collateral  review of  state  convictions,  the            Supreme  Court  noted that  such  an  outcome "would  require            sentencing courts to  rummage through frequently  nonexistent                                         -5-                                          5            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,                              ___            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),               _____________    _________            the Custis Court cautioned that "'[i]nroads on the concept of                ______            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                                         -6-                                          6            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                                                              ______            S. Ct. at 1739.                      Affirmed.                      ________                                                         ____________________            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,                                 ___ _____________     _____            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).                                           -7-                                          7
