U.S. v. Stevens

• Decision Date: 14 August 2000
• Docket Number: 99-1683,Nos. 99-1682,s. 99-1682
• Parties: (3rd Cir. 2000) UNITED STATES OF AMERICA, v. DWAYNE STEVENS, Appellant
• Court: U.S. Court of Appeals — Third Circuit

Page 239

223 F.3d 239 (3rd Cir. 2000)

UNITED STATES OF AMERICA, v. DWAYNE STEVENS, Appellant

Nos. 99-1682, 99-1683

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued March 9, 2000

Filed August 14, 2000

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, D.C. Criminal Nos. 97-625-02 and 99-165-01, District Judge: Honorable Ronald J. Buckwalter

Counsel for Appellant: Sylvia A. Russianoff Assistant Federal Defender Johnathan D. Libby (argued) David L. McColgin Assistant Federal Defender, Supervising Appellate Attorney Maureen Kearney Rowley Chief Federal Defender Federal Court Division Defender Association of Philadelphia Lafayette Building, Suite 800 437 Chestnut Street Philadelphia, PA 19106-2414

Counsel for Appellee: Joseph R. Biden, III (argued) Assistant U.S. Attorney Michael R. Stiles U.S. Attorney Walter S. Batty, Sr. Assistant U.S. Attorney Chief Of Appeals 615 Chestnut Street Suite 1250 Philadelphia, PA 19106

Before BECKER, Chief Judge, NYGAARD and GARWOOD,^* Circuit Judges.

OPINION OF THE COURT

GARWOOD, Circuit Judge:

Defendant-appellant Dwayne Stevens (Stevens) pleaded guilty to an indictment charging him with one count of carjacking, in violation of 18 U.S.C. S 2119, and one count of carrying a firearm during the commission of a violent crime, in violation of 18 U.S.C. S 924(c). Subsequently, Stevens pleaded guilty to an information charging another, separate carjacking offense. At a consolidated proceeding, the district court sentenced Stevens to 130 months' imprisonment for the indicted carjacking offense, followed by a minimum mandatory consecutive term of 120 months' imprisonment for the firearms offense, and also sentenced him to 120 months' for the other carjacking offense, to be served concurrently with the other sentence. Stevens now appeals both of his sentences. We affirm.

Facts and Proceedings Below

Stevens committed two separate carjacking offenses on February 6, 1997, and February 11, 1997. Regarding the February 11, 1997 offense, Stevens was indicted on November 20, 1997 in United States District Court for the Eastern District of Pennsylvania for one count of carjacking, in violation of 18 U.S.C. S 2119, and one count of carrying a firearm while committing a violent crime, in violation of 18 U.S.C. S 924(c). Pursuant to a plea agreement, he pleaded guilty to both counts on February 2, 1998. Regarding the February 6, 1997 offense, Stevens was charged by information on March 26, 1999 with another count of carjacking, to which he pleaded guilty (waiving indictment) on May 18, 1999. The two cases were consolidated for sentencing.

The district court sentenced Stevens on August 24, 1999. Regarding the indictment for the February 11, 1997 offense, the district court sentenced Stevens to a term of 130 months' imprisonment for the carjacking count and a mandatory consecutive term of 120 months' imprisonment for the firearm count, to be followed by a three-year term of supervised release. Regarding the information for the February 6, 1997 offense, the district court sentenced Stevens to 120 months' imprisonment and three years of supervised release, to be served concurrently with his other sentence. The district court also ordered a $100 special assessment fee. Final judgment was entered on August 25, 1999, and Stevens filed his notice of appeal for both sentences on September 1, 1999. The two appeals were consolidated on September 30, 1999.

Discussion

On appeal, Stevens argues that the district court erred in failing to "verify" whether he had read and discussed the presentence investigation report (PSR) with his attorney, in denying his request for a downward departure, and in calculating his sentence. Finding no merit to his arguments, we now affirm.

I. Rule 32's "Verification" Requirement

FED. R. CRIM. P. 32(c)(3)(A) requires that before imposing sentence, a district court must "verify that the defendant and defendant's counsel have read and discussed the presentence report."¹ This Court has declined to interpret Rule 32 as creating "an absolute requirement that the court personally ask the defendant if he has had the opportunity to read the report and discuss it with counsel." United States v. Mays, 789 F.2d 78, 79 (3d Cir. 1986). Instead, we have allowed for a more functional fulfillment of the rule, requiring only that the district court "somehow determine that the defendant has had this opportunity." Id. at 80.²

In the present case, it appears that the district court fell short of even this mark. At sentencing, the district court made the following remarks:

This is the time set for sentencing in the matter of United States v. Dwayne Stevens in connection with charges filed in this court to Docket Numbers 97-625 and 99-6 -- 99-165. A presentence investigation has been done with respect to the charges and those respective informations or indictments and that presentence investigation included that the total offense level here was 27 and criminal history category was six, and that therefore the guideline provisions were 130 to 162 months. And, there is, of course, the mandatory consecutive term on Docket 97-625 of ten years. Are there any requests for additions or corrections to the presentence?"

We have no doubt that the omission by the able trial judge was inadvertent and doubtless a lapse from his usual practice. At all events, the statement does not meet Rule 32's mandate that the court "verify," in one way or another, that the defendant has read and discussed the PSR with his attorney. In fact, the government concedes that the district court failed to satisfy this requirement. Stevens contends that the district court's noncompliance with Rule 32(c)(3)(A) constitutes reversible error and that this Court should vacate his sentence and remand for resentencing. Because Stevens did not bring this matter to the district court's attention, the applicable standard of review is that of "plain error," as Stevens concedes. See FED. R. CRIM. P. 52(b); United States v. Dozier, 119 F.3d 239, 244 (3d Cir. 1997).

Under the plain error standard of Rule 52(b),³ this Court may vacate and remand Stevens's sentence only if we find that (1) an error was committed; (2) the error was plain; and (3) the error affected Stevens's substantial rights. See United States v. Olano, 113 S.Ct. 1770, 1777-78 (1993). In most cases, the language about affecting substantial rights "means that the error must have been prejudcial," that is, "[i]t must have affected the outcome of the district court proceedings." Id. at 1778. If a forfeited error is "plain" and "affect[s] substantial rights," a Court of Appeals "has the authority to order correction, but is not required to do so." Id. The Court should exercise its discretion to order such a correction only if the error "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 1776.

As the error was "plain," our next inquiry must be whether it affected Stevens's "substantial rights." No published opinion of this Court has yet addressed this question. The Fourth, Sixth, Seventh, Ninth, and Tenth Circuits have all considered the issue, however, and have found, under either a "plain error" or "harmless error" analysis,⁴ that a district court's failure to comply with the dictates of Rule 32(c)(3)(A) (or its earlier counterpart) does not require vacatur and remand if the defendant cannot demonstrate that he suffered prejudice from the district court's error. See United States v. Lockhart, 58 F.3d 86, 89 (4th Cir. 1995) (applying plain error analysis to hold that when defendant pointed to no portion of the PSR that he would have challenged had the district court conducted an express inquiry, he did not show prejudice and vacatur and remand were not warranted); United States v. Stevens, 851 F.2d 140, 144 & n.7 (6th Cir. 1988) (finding no prejudice from district court's failure to address defendant directly about an allegedly inaccurate PSR because the court did not rely on any incorrect information in the PSR, and refusing to vacate and remand); United States v. Rodriguez- Luna, 937 F.2d 1208, 1213 (7th Cir. 1991) (declining to vacate and remand when defendant could not show prejudice from district court's failure to conduct express inquiry about the PSR); United States v. Davila-Escovedo, 46 F.3d 840, 844 (9th cir. 1994) (applying harmless error analysis, without addressing plain error, to deny defendant's request for resentencing when defendant made no claim of prejudice from the district court's Rule 32 violation); United States v. Rangel-Arreola, 991 F.2d 1519, 1526 & n.5 (10th Cir. 1993) ("While we recognize presentence reports are critical to sentencing and fairness requires the defendant be given the opportunity to read the report and discuss it with counsel, we will not remand for resentencing without some showing of prejudice by the defendant. To remand when no prejudice exists is to require the district court to undergo an exercise in futility in order to obtain the same sentence.").

The record reflects that the PSR was sent both to Stevens personally and to his counsel, and that thereafter and prior to sentencing defense counsel filed a memorandum with the court discussing the PSR, and noting with respect to its recital of Stevens's past criminal convictions that "Mr. Stevens does not deny his involvement in this conduct." Similarly, at sentencing defense counsel discussed the PSR's description of Stevens's prior offenses and stated "Mr. Stevens does not dispute the fact that he was involved in that conduct or that he pled guilty to those." Neither Stevens's original nor his reply brief asserts that either Stevens or his counsel did not receive and read the PSR or did not discuss it together; nor does Stevens therein raise any claim of prejudice or assert any inaccuracy in the PSR. Nor does anything in the record suggest otherwise. Stevens merely contends that ...