[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 97-1948
UNITED STATES,
Appellee,
v.
RANDALL J. COFSKE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Torruella, Chief Judge,
Selya and Boudin, Circuit Judges.
Mark W. Griffin on brief for appellant.
Donald K. Stern, United States Attorney, and Donald L. Cabell,
Assistant United States Attorney, on brief for appellee.
August 3, 1998
Per Curiam. Upon careful review of the briefs and
record, we find no need for oral argument and no reason to
disturb defendant's sentence:
1. For U.S.S.G. 5G1.3 purposes, an undischarged
term of probation is not an "undischarged term of
imprisonment." Prewitt v. United States, 83 F.3d 812, 817-18
(7th Cir. 1996); see also United States v. Gondek, 65 F.3d 1,
2 (1st Cir. 1995). Therefore, defendant's ongoing probation in
Virginia did not entitle him to credit for his discharged
Virginia prison term. The district court did not commit error,
plain or otherwise, in that regard.
2. Contrary to defendant's argument, the district
court sufficiently identified the grounds for the U.S.S.G.
2K2.1(b)(5) increase: defendant "certainly had reason to
believe once he was transferring weapons in the middle of the
night surreptitiously that those weapons were going to be used
in yet another felony," and the adjustment was awarded "because
in [the court's] opinion the defendant had reason to believe
that the weapons that he sold would be used or possessed in
connection with another felony." Further, there was a
sufficient factual basis for that increase, given the
inferences reasonably to be drawn from the circumstances of the
surreptitious transfer of the guns for illegal drugs and money.
And, as defendant was aware of the guidelines and the facts
relevant to his sentence, and the pre-sentence report
specifically alerted him to the potential for an increase under
2K2.1(b)(5), no additional notice was required of the
district court's particular intention in that regard. SeeUnited States v. Canada, 960 F.2d 263, 266-67 (1st Cir. 1992).
3. No plain error appears as to the two points
added to defendant's criminal history score based on his bail
law violations. Even if defendant's new dispute about the 1992
bail law violation had any merit, there is no dispute that the
1990 violation itself warranted two points. There is no
indication that the 1990 bail violation was counted twice.
Accordingly, we conclude that the two points properly were
added, whatever the status of the 1992 violation.
4. Defendant's claim of ineffective assistance of
counsel is not cognizable in this direct appeal. If defendant
believes that he has a viable claim, he may raise it in a
motion under 28 U.S.C. 2255.
Affirmed. See 1st Cir. Loc. R. 27.1.