United States v. Burke

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-1010

UNITED STATES,

Appellee,

v.

JOSEPH BURKE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Stahl, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Rosemary Curran Scapicchio for appellant.

Dina Michael Chaitowitz, Assistant United States Attorney, with

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

United States.

September 29, 1995

CAMPBELL, Senior Circuit Judge. Defendant Joseph

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

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.

Isaacs, 14 F.3d 106, 108-110 (1st Cir. 1994). In holding

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

by the Supreme Court in Custis, 114 S. Ct. at 1738. In

Custis, the Court refused "to extend the right to attack

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

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

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.

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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