                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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