US v. Soltero

• Decision Date: 19 October 2007
• Docket Number: No. 06-50257.,06-50257.
• Citation: 510 F.3d 858
• 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

510 F.3d 858

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.

No. 06-50257.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2007.

Filed October 19, 2007.

Amended December 12, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Sean K. Kennedy, Acting Federal Public Defender, Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Debra Wong Yang, United States Attorney, Wayne R. Gross, Assistant United States Attorney, David R. Gallivan, Special Assistant United States Attorney, Santa Ana, CA, for the plaintiff-appellee.

Before: THOMAS G. NELSON, EUGENE E. SILER, JR.,^* and MICHAEL DALY HAWKINS, Circuit Judges.

Per Curiam Opinion; Partial Concurrence and Partial Dissent by Judge HAWKINS.

ORDER

The Per Curiam Opinion filed on October 19, 2007, 506 F.3d 718 (9th Cir.2007), is amended as follows:

At slip op. 14109, 506 F.3d at 724, the following is deleted (first paragraph and footnote 8):

We agree. While it is possible that "Soltero" is the defendant's "true legal name" (as the government contends), 8/we see no reason for the supervised release condition to remain ambiguous when it could be so easily clarified. The government does not object to defendant's use of the surname "Soltero" during his period of supervised release, and thus we remand to the district court for it to revise the name condition so as to require Soltero to use the last name "Soltero," rather than his ambiguous "true legal name."

8/As the government noted at sentencing, "Soltero" is the name reflected in the defendant's criminal history records, Social Security documentation, and marriage license.

The following replaces the deleted text:

We disagree. While it is possible that "Soltero" is the name that defendant uses, he was born "Resinger," which has apparently never been changed legally. No authority vests with the federal courts to grant a name change. If the defendant wishes to legally change his name under California law, he must follow the procedures allowed under state law. The district court did not err by imposing the second condition of supervised release.

There are no changes to Judge Hawkins's Partial Concurrence and Partial Dissent in light of this amendment.

With this amendment, a majority of the panel has voted to deny the petition for rehearing. Judge Hawkins has voted to grant the petition for rehearing. Judges Nelson and Siler have recommended denying the petition for rehearing en banc. Judge Hawkins has voted to deny the en banc petition.

The petition for rehearing and petition for rehearing en banc are DENIED.

No further petitions for rehearing or rehearing en banc may be filed.

OPINION

PER CURIAM:

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.

I.

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.

II.

A. District Court's Compliance with Rule 32(i)(1)(A)

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) ("The 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 rely 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-Gonzales, 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, "given 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-Escoveda, 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.

B. The Treatment Condition

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...