
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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,  and Peter E. Papps, First            ______________                               ______________        Assistant United  States Attorney,  on Motion for  Summary Disposition        for appellee.                                 ____________________                                   December 2, 1996                                 ____________________                 Per  Curiam.    In  1991, defendant  Douglas  Burke  was                 ___________            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,                                          ______            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);                                              ___            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                                         -2-            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,                                                                     ___            e.g.,  United States  v. Throneburg,  87  F.3d 851,  854 (6th            ____   _____________     __________            Cir.), cert.  denied, 65 U.S.L.W. 3341  (1996); United States                   _____________                            _____________            v.  Caves, 73  F.3d 823,  824 (8th  Cir. 1996)  (per curiam);                _____            United States v. Hill,  48 F.3d 228, 230-32 (7th  Cir. 1995);            _____________    ____            see also United States v. O'Neil, 11 F.3d 292, 301  n.11 (1st            ________ _____________    ______            Cir. 1993);  compare, e.g.,  United States v.  Alexander, ___                         _______  ____   _____________     _________            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)                  _____________     ______            (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.,                                                               ___  ____            Throneburg, 87 F.3d at 854.  Compare United States v. Sparks,            __________                   _______ _____________    ______            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                                         -3-            court  sentence.   And  defendant acknowledged  below that  a            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-
