United States v. Stevens

• Decision Date: 16 March 1983
• Docket Number: Crim. No. 77-20025-04. Civ. No. 82-3123.
• Citation: 559 F. Supp. 1007
• Parties: UNITED STATES of America v. Jerrold E. STEVENS, Movant.
• Court: U.S. District Court — District of Kansas

559 F. Supp. 1007

UNITED STATES of America v. Jerrold E. STEVENS, Movant.

Crim. No. 77-20025-04. Civ. No. 82-3123.

United States District Court, D. Kansas.

February 7, 1983.

On Motion to Dismiss March 16, 1983.

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Jim J. Marquez, U.S. Atty., Kurt J. Shernuk, Asst. U.S. Atty., Topeka, Kan., for United States.

Jerrold E. Stevens, pro se.

MEMORANDUM AND ORDER

O'CONNOR, Chief Judge.

This matter comes before the court on the motion of Jerrold E. Stevens, pro se, to vacate, set aside, or correct his conviction and sentence pursuant to 28 U.S.C. § 2255. On August 24, 1977, Stevens was convicted by a jury on charges of conspiracy to distribute heroin, a controlled substance, and interstate travel to promote a conspiracy to distribute heroin in violation of 21 U.S.C. § 841(a)(1), § 846, and 18 U.S.C. § 1952. The government's theory of the case was that Stevens, who had run a fencing operation, entered into a partnership with a heroin dealer for the purpose of selling heroin. On October 11, 1977, this court sentenced Stevens to be imprisoned for concurrent terms of ten and five years, with eligibility for parole at such time as the U.S. Parole Commission might determine pursuant to 18 U.S.C. § 4205(b)(2). The judgment was affirmed by the Tenth Circuit Court of Appeals, United States v. Stevens, 612 F.2d 1226 (10th Cir.1979). A petition for writ of certiorari was denied by the United States Supreme Court on June 16, 1980.

Stevens' present motion focuses on the accuracy of his presentence investigation report. The presentence report plays an important role in the federal system of justice. For an excellent discussion of the functions and nature of the report see generally, Rosati v. Haran, 459 F.Supp. 1148 (E.D.N.Y.1977). Rule 32 of the Federal Rules of Criminal Procedure makes the compilation of such a report mandatory. Fed.R.Crim.P. 32(c)(1). The report is used in the first instance by the court in sentencing. The report assembles a wide variety of information relevant to the sentencing determination. Once the defendant is sentenced, the presentence report is "forwarded to both the Bureau of Prisons and the institution of confinement, and becomes part of the defendant's correctional file." Rosati v. Haran, supra, at 1152. The report is used by the Bureau of Prisons in preparing a classification study which determines the defendant's custody status and treatment program. Id. The report is also used by the United States Parole Commission. In fact, the parole commission is required by statute and regulation to consider the presentence report in making parole determinations. 18 U.S.C. § 4207; 28 C.F.R. § 2.19(a)(3) (1982). Among the most important of these determinations is the assessment of the inmate's "offense severity rating" and "salient factor score," which are used to determine the applicable paroling policy guidelines prescribing the length of time an inmate must serve before he becomes eligible for parole. See 28 C.F.R. § 2.20 (1982). Thus, the presentence report plays a significant role with regard to the determination and the execution of an inmate's sentence.

Because of the far-reaching impact that the presentence report has upon a criminal defendant, it is important that the information contained in the report be accurate. In an attempt to insure the accuracy of the report, Rule 32(c)(3) was amended in 1974 to require disclosure of the report to the defense prior to the imposition of sentence. Fed.R.Crim.P. 32(c)(3)(A).

The advisory committee is of the view that accuracy of sentencing information is important not only to the defendant but also to effective correctional treatment of a convicted offender. The best way of insuring accuracy is disclosure with an opportunity for the defendant and counsel to point out to the court information thought by the defense to be inaccurate, incomplete, or otherwise misleading.

Notes of Advisory Committee on Rules, 1974 Amendment, Fed.R.Crim.P. 32(c)(3)(A). See also H.R.Rep. No. 94-247, 94th Cong., 1st Sess. 18, Reprinted in 1975 U.S.Code Cong. & Ad.News 674, 690.

It is in light of the importance of the pre-sentence report and the need for accuracy in the report that we consider Stevens' motion.

Stevens now attempts to attack his conviction by means of a § 2255 proceeding on the ground that his presentence report contained erroneous information. The allegedly erroneous passage, which appears on page 10 of the report, reads as follows:

It was estimated that during its brief life, the partnership generated criminal activity in the community, amounting to more than $100,000 each week.

Specifically, Stevens contends that the dollar amount was grossly exaggerated. Because Stevens is proceeding pro se, we must interpret his pleadings as liberally as possible. Downing v. New Mexico State Supreme Court, 339 F.2d 435 (10th Cir.1964); Cook v. Whiteside, 505 F.2d 32 (5th Cir. 1974); Freeman v. Lockhart, 503 F.2d 1016 (8th Cir.1974). When read liberally, Stevens' § 2255 motion and the supplement thereto state three major arguments. First, Stevens maintains that he was sentenced on the basis of erroneous information contained in the presentence report, and that his sentence would have been less severe had the erroneous information not been included. Second, in the supplement to his motion Stevens alleges that he was denied effective assistance of counsel at the sentencing stage because his attorney failed to advise him of the contents of the presentence report or of its significance for purposes of sentencing and parole considerations. Third, Stevens asserts that he has been denied parole because the parole commission classified his offense as "Greatest I severity" on the basis of the erroneous information contained in the presentence report. We move now to address each of Stevens' major contentions in turn.

I. Stevens' argument that in imposing sentence, the court relied upon erroneous information contained in the presentence report.

In support of his motion under § 2255, Stevens contends that he is entitled to have his sentence set aside or corrected because this court, in imposing sentence, relied upon the allegedly erroneous statements contained in the presentence report. Thus, Stevens maintains, he was sentenced on improper grounds. We disagree.

In considering what sentence to impose, the judge is entitled to consider a broad range of information, including but not limited to the contents of the presentence report. As we noted in United States v. Broce, No. 81-20119-02, No. 82-20011-01 (D.Kan., unpublished, 8/5/82),

A sentencing court has great latitude with respect to matters that may be considered for the purpose of imposing an appropriate sentence. The judge may, before sentencing, conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider or the source from which it may come. United States v. Tucker, 404 U.S. 443 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). In fact, he may consider the fullest information possible concerning the defendant's life, his characteristics, and his conduct. 18 U.S.C. § 3577, Smith v. United States, 551 F.2d 1193 (10th Cir.1977), cert. denied 434 U.S. 830 98 S.Ct. 113, 54 L.Ed.2d 90 (1977). Additionally, due process does not preclude the court from relying on hearsay in a presentence report. United States v. Garcia, 544 F.2d 681 (3rd Cir.1976).

Under ordinary circumstances, a sentence imposed on the basis of information contained in the presentence report would not be subject to attack.

As Stevens suggests, however, a sentence based on inaccurate, erroneous, or incomplete information is inconsistent with due process. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1979). Thus, it has been held that a sentence explicitly based upon unverified and unreliable charges of serious criminal conduct must be vacated. United States v. Weston, 448 F.2d 626 (9th Cir.1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972). This well established rule emphasizes the importance of accuracy in the presentence report. But a sentence cannot be vacated upon the mere allegation that erroneous information was contained in the presentence report. The Ninth Circuit has expressed the standard for cases such as this as follows:

The clear teaching of Townsend and Weston is that a sentence will be vacated on appeal if the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence. In the context of a § 2255 proceeding, a motion must be denied unless it affirmatively appears in the record that the court based its sentence on improper information.

Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir.1978) (emphasis in original).

Thus, in order for the court to correct or set aside his sentence, Stevens must demonstrate first, that the presentence report contained erroneous information, and second, that the court based its sentence upon that information.

Even assuming, arguendo, that the dollar amount contained in the presentence report was erroneous, Stevens has failed to satisfy the second prong of the test set out in Farrow, supra. He has offered nothing to support his contention that this court based its sentence upon the allegedly erroneous information. The fact is the court did not rely upon the allegedly erroneous dollar amount in imposing sentence upon Stevens. The sentence was imposed in light of the evidence adduced at trial concerning Stevens' involvement in the criminal activity for which he was convicted and with regard to his rather substantial prior criminal record.

In addition, we believe that the proper time to challenge the information contained in the presentence report was at the sentencing stage. A review of the transcript of the sentencing hearing in this case clearly indicates that Stevens and his attorney had ample opportunity to review the presentence report and to state...