United States v. Burke

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 95-1010



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                    JOSEPH BURKE,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
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                                 ____________________



                                        Before



                                 Stahl, Circuit Judge,
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                           Campbell, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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                                 ____________________



            Rosemary Curran Scapicchio for appellant.
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            Dina Michael  Chaitowitz, Assistant United  States Attorney,  with
            ________________________

        whom Donald K.  Stern, United States  Attorney, was on  brief for  the
             ________________

        United States.

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                                  September 29, 1995



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CAMPBELL, Senior Circuit  Judge.  Defendant  Joseph
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            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



                                
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            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. 



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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


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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.
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            Isaacs, 14 F.3d  106, 108-110  (1st Cir. 1994).   In  holding
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            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
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            by  the Supreme  Court in  Custis, 114  S. Ct.  at 1738.   In
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            Custis, the  Court refused  "to extend  the  right to  attack
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            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
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            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.



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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
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            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


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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


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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.
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            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).  



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