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[NOT FOR PUBLICATION]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,
______________
Assistant United

States Attorney,

and Peter E. Papps, Fi

______________

on Motion for

Summary Disposit

for appellee.

____________________

December 2, 1996
____________________

Per Curiam.
___________

In

1991, defendant

Douglas

Burke

was

convicted in

federal

later sentenced to

court on

28 months

supervised release.

counterfeiting

in prison and

state

prison.

the federal

after finding

conditions of

court revoked

him to a consecutive,

of

Upon his plea of guilty

state court sentenced him to a

In turn,

thereby violated the

three years

and

In 1995, while on supervised release, he

was arrested on state fraud charges.

to such charges, the

charges

that

defendant had

his supervised

his release status

term in

release,

and sentenced

24-month term in federal prison.

The

validity of this latter sentence is the sole issue on appeal.

Defendant's counsel,

presents

no

withdraw

accompanied by

espousing the

voicing the belief that the appeal

nonfrivolous

issues,

an

Anders
______

same view, has moved

has filed

brief; the

motion

to

government,

for summary disposition.

Defendant has filed a pro se

brief and an opposition to

the

government's motion.

We agree that the

violated

appeal is frivolous.

the conditions

disputed, and

of

his supervised

the sentence imposed was

statutory and guideline ranges.

U.S.S.G.

7B1.4(a).

defendant's pro

The

sole

se brief--that

in fact,

not

within the governing

contention

3583(e)(3);

advanced

the federal court

in

relied on

The record reveals that the

base its sentence

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defendant

release is

See 18 U.S.C.
___

false information--is misplaced.

state court did,

That

partly on

the

expectation that further

imprisonment would result from

the

federal

That

was

not

no moment;

the

proceedings.

memorialized

in the

matter was brought

the

plea

expectation

agreement is

to the state

imposition of sentence.

advised (contrary

such

of

court's attention prior

And the federal

to defendant's

to

court was not

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.

consecutive sentencing,

e.g.,
____

United States
_____________

7B1.3(f), with its call for

is binding on the

v. Throneburg,
__________

87

Cir.), cert. denied, 65 U.S.L.W. 3341

_____________

v.

Caves, 73
_____

F.3d 823,

United States v. Hill,

_____________
____

824 (8th

lower court, see,

___

F.3d 851,

(1996); United States

_____________

Cir. 1996)

(per curiam);

48 F.3d 228, 230-32 (7th

see also United States v. O'Neil, 11 F.3d 292, 301

________ _____________
______

Cir. 1993);

F.3d

compare, e.g.,
_______ ____

854 (6th

United States v.
_____________

Cir. 1995);

n.11 (1st

Alexander, ___
_________

___, 1996 WL 656094 (5th Cir. 1996) (discussing

n.6); United States

_____________

v. Gondek, 65 F.3d 1,
______

(same), the matter is without significance

5G1.3

2 (1st Cir. 1995)

here.

The record

does not suggest that

the district court believed it

alternative but to impose a consecutive sentence.

Throneburg, 87 F.3d at 854.

__________

19

F.3d

1099, 1100-01

consecutive

sentence

See, e.g.,
___ ____

Compare United States v. Sparks,

_______ _____________
______

(6th Cir.

was

had no

1994).

obviously

Imposition

warranted

under

of a

the

circumstances--particularly given the rationale for the state

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court

sentence.

And

defendant acknowledged

below that

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.
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