
USCA1 Opinion

	




          February 14, 1994     [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2335                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                   LEO A. McHATTON,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel B. Gorton, U. S. District Judge]                                              ____________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               John  C.  McBride and  McBride  &  Associates on  brief  for               _________________      ______________________          appellant.               Donald  K.  Stern,  United States  Attorney,  and  Joseph F.               _________________                                  _________          Savage,  Jr.,  Assistant  United States  Attorney,  on  brief for          ____________          appellee.                              _________________________                              _________________________                    Per Curiam.  Defendant-appellant Leo A. McHatton stands                    Per Curiam.                    __________          convicted on six  counts charging him with violating  26 U.S.C.            7206(1) by  filing  false  federal income  tax  returns  for  the          calendar years  1986 through  1991.1  The  district court  made a          disputed guidelines calculation as to the amount(s) of tax evaded          and  sentenced appellant  to one  year in  prison on  each count;          fined him $10,000; imposed a one-year term of supervised release;          and levied a $50 special felony assessment on  each count, see 18                                                                     ___          U.S.C.    3013 (1988).   McHatton appeals from  the judgment.  We          affirm.                    In our view, the concurrent  sentence doctrine obviates          any  need to resolve the  dispute about the guideline calculation          in this  appeal and requires  that we affirm the  judgment below.          Under  the concurrent  sentence doctrine,  the  existence of  one          valid  conviction   "make[s]  unnecessary  the  review  of  other          convictions when  concurrent sentences have been  given, provided          there is no  adverse collateral consequence to  not reviewing the          concurrent sentence."  United States  v. Hudacek, 7 F.3d 203, 204                                 _____________     _______          n.1 (11th Cir. 1993); see also Benton v.  Maryland, 395 U.S. 784,                                ___ ____ ______     ________          788-89 (1969);  Hirabayashi v. United  States, 320  U.S. 81,  105                          ___________    ______________          (1943); United States  v. Nightingale, 703 F.2d 17,  19 (1st Cir.                  _____________     ___________          1983); United States  v. Tashjian, 660 F.2d 829,  840 (1st Cir.),                 _____________     ________          cert. denied,  454 U.S.  1102 (1981).   Here, all  the conditions          _____ ______                                        ____________________               1McHatton  went to trial  on a twelve-count  indictment.  He          was acquitted  on the non-tax  counts.  The counts  of conviction          are counts 7  (1986), 8 (1987), 9  (1988), 10 (1989),  11 (1990),          and 12 (1991).                                          2          necessary  to animate  the doctrine  are present.   The  district          court made the prison sentence  and fine concurrent on all counts            and appellant  has not argued that  the sentence on count  7 (a          non-guidelines  count) can be  overturned on appeal.2   That ends          the matter,  for no adverse  collateral consequence looms  on the          horizon.                    To  be sure, the  term of supervised  release is geared          only  to  certain  appealed  counts,  viz.,  counts  8-12.    But                                                ____          defendant does not argue against his conviction on those  counts;                                               __________          he  argues instead  that he  is  entitled to  a milder  sentence.          Thus, even  if appellant's point  is well-taken    and we  do not          think that it is, see infra   the term of supervised release will                            ___ _____          not be abated.  See U.S.S.G.  5D1.1(b);  U.S.S.G.  5D1.1 comment.                          ___          (n.2) ("[T]he  court may impose  a term of supervised  release in          cases involving  imprisonment for a  term of one year  or less.")                                                                 __ ____          (emphasis supplied).     By  like token,  the six  $50 per  count          special  felony assessments  do not  require that  we allow  this          appeal to go forward.  Under the controlling statute, 18 U.S.C.            3013(a)(2)(A), it is the fact of a defendant's felony conviction,          not the  fact of  incarceration or the  length of  sentence, that                                        ____________________               2Since count  7  covered a  year (1986)  that antedated  the          effective  date of the sentencing guidelines, we cannot visualize          any basis  for an appeal of  the sentence imposed  on that count.          See United States v. Tucker, 404 U.S. 443, 447 (1972) (explaining          ___ _____________    ______          that, prior to the advent  of the guidelines, "a sentence imposed          by  a federal  district  judge, if  within  statutory limits,  is          generally  not subject to review"); United States v. Ruiz-Garcia,                                              _____________    ___________          886 F.2d 474, 477  (1st Cir. 1989) (explaining that,  in the pre-          guidelines  era, sentencing appeals  were infrequent  and "[w]hen          appeals were taken, success was hen's-teeth rare").                                          3          dictates  imposition of  the assessment.    See generally  United                                                      ___ _________  ______          States  v. Luongo, 11 F.3d 7 (1st Cir. 1993).  Hence, a change in          ______     ______          the  duration of appellant's sentence  will not affect either the          number or aggregate amount of the special assessments.                    Although the concurrent sentence doctrine is completely          dispositive  of this  appeal, we  add  that, in  all events,  the          evidence  in   the   record   supports   the   district   court's          approximation  of   the  amount(s)   of  unreported  income   and          underpayments of tax, and, therefore,  the amount of loss.  After          all, a sentencing court's calculations in these respects need not          be infinitely precise.  See,  e.g., United States v. Tardiff, 969                                  ___   ____  _____________    _______          F.2d 1283, 1288 (1st Cir.  1992); United States v. Bachynsky, 949                                            _____________    _________          F.2d 722,  731-33 (5th Cir. 1991),  cert. denied, 113 S.  Ct. 150                                              _____ ______          (1992).   The  facts underlying  a guideline calculation  of this          genre "may be  inferred from any reasonably  reliable information          available,  including  the  scope of  the  operation."   U.S.S.G.           2B1.1, comment.  (n.3); see  also United  States v.  Skrodzki, 9                                   ___  ____ ______________     ________          F.3d  198,  203 (1st  Cir. 1993)  &  cases cited  therein.   And,          moreover,  the guidelines explicitly  recognize that in  some tax          cases,  "the amount of the  tax loss may  be uncertain," with the          result  that  the court  must  then  "simply  make  a  reasonable          estimate  based  on  the  available  facts".    U.S.S.G.   2T1.1,          comment. (n.2).   Once the trial court has performed this task, a          dissatisfied party, on  appeal, "must carry  the heavy burden  of          persuading the court of appeals that the lower court's conclusion          is clearly erroneous."  Tardiff, 969 F.2d at 1288.                                  _______                                          4                    Appellant has  not satisfied  the devoir of  persuasion          here.  Rather, our review of the record persuades us that the key          calculation    the district court's approximation  of appellant's          unreported  income  for  the  years 1974-1985     is  within "the          universe of acceptable computations."   Id.  The evidence  showed                                                  ___          that appellant earned some  income as an electrician  during that          period;  it also  showed that  he failed  to report  such income.          Under  those   circumstances,   the   court   supportably   could          extrapolate from the  stipulated facts concerning later  years to          arrive at an  estimate for the earlier years.   Cf., e.g., United                                                          ___  ____  ______          States v. Sklar, 920 F.2d 107, 111-14 (1st Cir. 1990).          ______    _____          Affirmed. See 1st Cir. R. 27.1.          Affirmed. See 1st Cir. R. 27.1.          ________  ___ ___ ___  _  ____                                          5
