U.S. v. Soltero
| Decision Date | 19 October 2007 |
| Docket Number | No. 06-50257.,06-50257. |
| Citation | 506 F.3d 718 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Dean Harlon SOLTERO, a/k/a Dean Harlon Resinger, Dean Harlon Soctero, Dean Harlow Soctero, Dean Harlow Soltero and "Huero," Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the Central District of California; Alicemarie H. Stotler, District Judge, Presiding. D.C. No. CR-04-00235-AHS.
Before: T.G. NELSON, EUGENE E. SILER, JR.,* and HAWKINS, Circuit Judges.
Dean Harlon Soltero ("Soltero") appeals the sentence imposed following his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argues that the district court erred by failing to verify that he had read his presentence report ("PSR") and had discussed it with his attorney, as well as by imposing three particular conditions of supervised release. We affirm in part, and vacate and remand in part.
Soltero1 pleaded guilty to a single-count indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, both Soltero and his counsel were given an opportunity to address the court on the matter of sentencing. Although the court did not expressly ask Soltero whether he had read the PSR and discussed it with counsel, Soltero had been advised at a previous hearing that he would have this opportunity and never indicated to the sentencing court that the opportunity had been denied him. Moreover, Soltero's counsel raised — and the district court considered — several objections to facts contained in the PSR, with counsel using the word "we" to frame the defense's objections.
After ruling on these objections, the court sentenced Soltero to 72 months imprisonment, followed by three years of supervised release. During his term of supervised release, the court ordered Soltero to (among other things): (1) "As directed by the Probation Officer, . . . pay all or part of the costs of treating [his] drug dependency and/or alcohol dependency"; (2) use only his "true legal name"; and (3) refrain from "associating with any known member of any criminal street gang or disruptive group . . ., specifically, any known member of the Delhi street gang."2 The district court overruled Soltero's objections to these conditions. Soltero now appeals, arguing that the district court's failure to verify that he had read the PSR and discussed it with his attorney requires resentencing and that the three conditions of supervised release are improper.
Rule 32(i)(1)(A) requires a district court to "verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report."3 Fed.R.Crim.P. 32(i)(1)(A). This rule's purpose is, as Soltero correctly points out, "to ensure that the defendant [has] the opportunity to read the report and then clarify or dispute personal information contained" therein. See id., advisory committee's notes (1983) ("[T]he failure to disclose the report to the defendant, or to require counsel to review the report with the defendant, significantly reduces the likelihood that false statements will be discovered, as much of the content of the [PSR] will ordinarily be outside the knowledge of counsel."). Soltero argues that the district court violated this rule by failing to expressly verify that he had read the PSR and discussed it with his attorney.
A district court need not specifically inquire whether a defendant has read the presentence report, United States v. Lewis, 880 F.2d 243, 245 (9th Cir.1989); however, for Rule 32(a)(1)(A) to be satisfied, the sentencing judge must "reasonably rel[y] on evidence indicating that a defendant has read the presentence report and discussed it with counsel," id. at 246. Here, no such direct evidence exists. Although Soltero was informed of the PSR's existence when the district judge alluded to it at his change of plea hearing, merely informing a defendant that a PSR would be prepared and that he would have a chance to read and discuss it with his attorney does not prove that these events actually took place. United States v. Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir.2001).
Additionally, although Soltero's attorney objected to portions of the PSR (and at least some of these objections were likely based on discussions with Soltero), counsel's objections do not confirm that Soltero read the entire PSR and had a chance to point out any factual errors. United States v. Osborne, 291 F.3d 908, 910 (6th Cir.2002); United States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir.1995). Finally, while Soltero's attorney repeatedly used the word "we" when discussing the defense's PSR objections (which might imply that he spoke for both him and Soltero), we have already held that use of the word "we" by defense counsel proves nothing, as "we" is a "common stylistic device used by lawyers." United States v. Sustaita, 1 F.3d 950, 953 (9th Cir.1993). Because the district court neither directly asked Soltero if he had read the PSR and discussed it with his attorney nor relied on evidence indicating the same, we hold that the court's inquiry was inadequate under Rule 32(i)(1)(A).
Soltero believes our inquiry should end there and that we should automatically remand his case for resentencing because, "[g]iven the court's failure to comply with Rule 32, we have no assurance that the PSR was accurate." While we acknowledge that some circuits have adopted this approach, see, e.g., Osborne, 291 F.3d at 910-11, this circuit has consistently held that, "if it is clear that no prejudice resulted" from a court's failure to comply with the letter of Rule 32(i)(1)(A), the error is harmless, and resentencing is unnecessary. United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir.1994); Sustaita, 1 F.3d at 954. Although we emphasize that this error can be, and should be, "easily avoided," Sustaita, 1 F.3d at 954, we still agree — as do several other circuits4 — that a harmless error analysis is appropriate in this context.
Here, just as in Davila-Escovedo, Soltero has "made no affirmative allegation that he failed to read the report" and review it with his attorney. 36 F.3d at 844. Equally important, Soltero has never identified — either to the district court or to this court — any fact in the PSR he would have disputed had the sentencing judge afforded him the opportunity. Cf. Sustaita, 1 F.3d at 954. We thus do not see how a failure to verify that Soltero read the PSR and discussed it with counsel resulted in any prejudice to Soltero. Accordingly, the district court's Rule 32(a)(1)(A) error was harmless.
Soltero's next contention is that the following condition impermissibly delegates to the probation officer the court's exclusive authority under 18 U.S.C. § 3672:
As directed by the Probation Officer, the defendant shall pay all or part of the costs of treating the defendant's drug dependency and/or alcohol dependency to the aftercare contractor during the period of community supervision, pursuant to 18 U.S.C. § 3672. Defendant shall provide payment and proof of payment as directed by the Probation Officer. [Condition 6]
He argues that, pursuant to 18 U.S.C. § 3672, only courts are allowed to make determinations as to a defendant's ability to make such payments and whether such payments should be made. We review this claim for an abuse of discretion. United States v. Williams, 356 F.3d 1045, 1052 (9th Cir.2004).
We addressed this precise issue in United States v. Dupas, 419 F.3d 916, 924 (9th Cir.2005).5 In Dupas, we held that the district court did not plainly err by delegating to a probation officer the authority to determine whether the defendant has sufficient funds to pay for treatment and whether to require such payment. Id. (). In approving the delegation in that case, we noted:
[T]he context of the provision in § 3672 is quite different from the context found in §§ 3572 and 3664. The later provisions relate generally to the court's imposition of sentences and restitution. Section 3672, by contrast, is directed primarily to the functions of the probation office. Moreover, the need to interpret the statute strictly so as to reserve core judicial functions to the court is weaker here; the condition at issue does not delegate to the probation officer the power to order substance abuse treatment in the first place. Finally, § 3672 requires the court only to find generally that funds are available to pay for an offender's treatment and, if so, allows the court to direct that such funds be paid. By contrast § 3572(d) and § 3664(f) expressly require the court to establish or specify the precise payment schedule.
Id. at 924 (citations omitted). Based on Dupas, the district court did not abuse its discretion in delegating the cost determination to the probation office.6
Soltero also argues that the payment conditions should be vacated because he has no ability to contribute to the costs of the substance abuse treatment. He asserts that because the court found that he did not have the ability to pay a fine, the court also must find that he does not have the ability to pay the costs of court-ordered treatment. This argument is without merit. The district court's two rulings are harmonious since any payment toward Soltero's...
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