United States v. Knowlton

USCA1 Opinion




January 20, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1735




UNITED STATES,

Appellee,

v.

THOMAS F. KNOWLTON,

Defendant, Appellant.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Gene Carter, U.S. District Judge]
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Before

Breyer, Chief Judge.
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Cyr and Stahl, Circuit Judges.
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Arlene C. Halliday on brief for appellant.
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Jay P. McCloskey, United States Attorney, and Michael M.
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DuBose, Assistant United States Attorney, on Motion to Dismiss
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Appeal for appellee.



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Per Curiam. The government has moved for summary
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disposition of this appeal under Loc. R. 27.1. We agree that

there is no substantial issue presented, and we affirm the

judgment below.

Defendant pleaded guilty to a one-count indictment

charging possession of a firearm by a convicted felon in

violation of 18 U.S.C. 922(g)(1), 924(a)(2). Under

U.S.S.G. 2K2.1(a)(2), his base offense level was properly

calculated at Level 24 "if [he] had at least two prior felony

convictions of either a crime of violence or a controlled

substance offense." The presentence report ("PSI") listed

two such convictions -- a drug offense and a burglary of a

dwelling. Defendant initially objected to the

characterization of the burglary as a crime of violence and

its use for sentence enhancement purposes. Defense counsel

later withdrew these objections, however, and with

defendant's approval, conceded the base offense level of 24.



Defendant now attempts to reverse the effect of his

voluntary concession by arguing that the court committed

plain error in omitting from its findings of fact an express

citation to the PSI paragraph which listed the burglary

conviction. The argument erroneously equates the absence of

a numerical citation with a failure to make factual findings.

The court specifically found the relevant fact, that



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defendant had two prior qualifying convictions. It relied

upon the defendant's concession, expressly reiterating among

its written findings that defendant had withdrawn his

objections to considering the burglary for the purpose of

sentence enhancement. In addition, the court's judgment

adopted the factual findings of the PSI. "As a general rule a

trial court lawfully may make implicit findings with regard

to sentencing matters, incorporating by reference suitably

detailed suggestions limned in the PSI Report or advanced by

a party." United States v. Tavano, 1993 U.S. App. LEXIS
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33879, at *18 (1st Cir. Dec. 29, 1993) (citing cases). No

particular citation form is required.

Accordingly, we grant the government's motion under

Loc. R. 27.1 and affirm the judgment below.
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