868 F.2d 1544 (11th Cir. 1989), 88-5129, United States v. Flanagan

Docket Nº:88-5129
Citation:868 F.2d 1544
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Daniel Francis FLANAGAN, Defendant-Appellant.
Case Date:April 05, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1544

868 F.2d 1544 (11th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Daniel Francis FLANAGAN, Defendant-Appellant.

No. 88-5129

United States Court of Appeals, Eleventh Circuit

April 5, 1989

Page 1545

Lori Barrist, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., Miami, Fla., Sandra M. Kabboush, Asst. U.S. Atty., West Palm Beach, Fla., Linda C. Hertz, Harriett R. Galvin, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, ANDERSON and CLARK, Circuit Judges:

PER CURIAM:

I. Facts

On February 4, 1986, Daniel F. Flanagan (Flanagan) pled guilty to one count of making a false statement to a firearms dealer in violation of 18 U.S.C. Secs. 922(a)(6) & 924(a). In March 1986, Flanagan was sentenced to a three-year term of incarceration. Pursuant to the split sentence provision of 18 U.S.C. Sec. 3651, however, he was ordered incarcerated in a jail-type institution for six months and placed on probation for the remaining thirty months. Record, Vol. 1, Tab 32.

Following his release, a petition for probation revocation was filed on February 2, 1987, alleging that Flanagan had continued to use cocaine in violation of the terms of his probation. Id. at Tab 35. After a hearing, the district court extended his probation an additional thirty months and ordered him to participate in a drug rehabilitation program. Id. at Tab 41.

On July 10, 1987, a second petition for probation action was filed and a hearing was held on August 7, 1987. Docs. 45, 46. The district court revoked Flanagan's probation and committed him to the custody of the Attorney General for a period of three years. The court also ordered a psychiatric study pursuant to 18 U.S.C. Sec. 4205(d). Id. at Tab 46. After reviewing the study at a sentencing hearing held on January 6, 1988, the district court affirmed the three-year sentence. Id. at Tab 50. Flanagan timely appealed.

II. Discussion

Flanagan contends that the three-year sentence imposed upon the revocation of his probation is illegal. In his view, because he had already served six months under the split-sentence provision, the maximum sentence he could receive was the thirty-month probated sentence. The government contends that the three-year sentence is lawful. The government concedes that because the district court suspended the execution...

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