United States v. Nappi

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

3-21-2001

USA v. Nappi

Precedential or Non-Precedential:

Docket 99-6126

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Filed March 21, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-6126

UNITED STATES OF AMERICA

v.

ROBERT TEQUAN NAPPI,

a/k/a QUAN NAPPI,

a/k/a KEITH WADE

Robert Tequan Nappi,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Criminal No. 98-cr-00728)

District Judge: Honorable Katharine S. Hayden

Argued November 30, 2000

Before: BECKER, Chief Judge, RENDELL, and

MAGILL*, Circuit Judges

(Filed: March 21, 2001)

_________________________________________________________________

* Hon. Frank J. Magill, Senior Judge of the United States Court of

Appeals for the Eighth Circuit, sitting by designation.

David A. Holman, Esq. [ARGUED]

Chester M. Keller, Esq.

Office of Federal Public Defender

972 Broad Street

Newark, NJ 07102

Counsel for Appellant

Shawna H. Yen, Esq. [ARGUED]

George S. Leone, Esq.

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

I. INTRODUCTION

Appellant Robert Tequan Nappi ("Nappi") challenges his

federal sentence of 105 months' imprisonment, claiming

that it was improperly predicated on factual information

contained in a state presentence report ("state PSI") that

was not presented to him or his attorney prior to, or

during, the sentencing hearing, and on which he had no

opportunity to comment prior to the District Court's

imposing sentence. He argues that Federal Rule of Criminal

Procedure 32(c)(1) required the District Court to provide

him with the state PSI prior to the sentencing hearing so as

to afford him a meaningful opportunity to comment on the

information contained therein befor e the Court imposed its

sentence.

It is undisputed that Nappi did not object to the Court's

reliance upon the state PSI either during the sentencing

hearing itself or in his post-sentencing submission. We,

therefore, apply a "plain error" standard of review to the

District Court's violation of Rule 32(c)(1). While we agree

with Nappi that the Court violated Rule 32(c)(1), for the

reasons that follow, we find that he has not met his burden

2

of establishing that the error affected"substantial

rights,"--i.e., that there was any prejudice resulting from

the Court's error. Accordingly, we will affirm the District

Court's sentencing order.

II. FACTS and PROCEEDINGS

As Nappi's appeal focuses exclusively on the pr opriety of

his sentence, we need only briefly discuss the facts. Nappi

pled guilty to one count of possession of a fir earm by a

convicted felon in violation of 18 U.S.C. S 922(g)(1). The

federal PSI prepared by the Probation Office outlined

Nappi's criminal history, but provided limited information

with respect to his juvenile recor d. The section entitled

"Juvenile Adjudications" listed five juvenile adjudications,

and provided for each of them: (1) the date of Nappi's

arrest; (2) the specific charges filed against him; (3) the date

of sentencing and the disposition; and (4) Nappi's age at the

time of the crimes. It stated, however, that"[t]he details for

these juvenile cases are not available." Fed. PSI at 6-7.

Under the heading "Other Juvenile Matters," the federal PSI

further noted:

In addition to the above-captioned juvenile convictions,

between June 1986 and June 1994, Essex County

authorities apprehended the defendant on 15 occasions

for burglary, lewdness, assault, violation of probation,

robbery, criminal mischief, receiving stolen property

and resisting arrest. The charges for these arrests were

dismissed in the Essex County Juvenile Court of

Newark, New Jersey.

Id. at 7.

At the outset of the sentencing hearing, the Court asked

counsel if he had reviewed the federal PSI and if there was

anything further that needed to be addressed. Defense

counsel acknowledged that he read it and stated that he

had no objections to its contents. Defense counsel then

argued that Nappi should be sentenced to 84 months'

imprisonment, which was the minimum sentence within

the applicable Guideline range of 84-105 months. After the

Court afforded Nappi his right of allocution, it proceeded to

impose its sentence. Because of its significance, we recount

3

the relevant portions of the Court's sentencing

pronouncement:

[T]he calculation [of the criminal history points]

demonstrates that Mr. Nappi has a number of criminal

history points which put him into criminal history

category 5 and expose him to a sentence of 84 to 105

months. It is my job as the Judge now to decide wher e

in that range Mr. Nappi should be sentenced. . . . 84

to 105 months, as we all know, is a 21 month

difference which is a sizeable range. And as I

demonstrated before, the exposure is considerably

higher than would otherwise be the case on an of fense

level of 23 because of his criminal history. So I look to

the nature of the criminal offenses and as I previously

observed, Mr. Nappi has been in the criminal justice

system since his first arrest at age 10.

I asked probation to share with me some of the earlier

Presentence Reports that were written regarding Mr.

Nappi. . . . [In connection with a 1995 arr est] a [state]

presentence report was prepar ed that set forth Mr.

Nappi's juvenile history, which as indicated began in

1986 with an arrest for burglary and criminal mischief

that was 6/21/86, within days of his 10th birthday.

Thereafter, there were arr ests for unlawful taking and

means of conveyance back sometime between `86 and

`89, and the next guilty [juvenile adjudication] was in

March of `90, after an arrest in October of `89 for theft,

criminal mischief and possession of burglary tools. . . .

Six months after that based on an arrest, the month

before that [juvenile adjudication] for r obbery, Mr.

Nappi was sentenced to one year probation. Again, we

are still looking at his juvenile history.

App. at 29. Continuing, the Court then consider ed every

contact Nappi had with the criminal justice system between

1991 and 1994, including his history of dismissed juvenile

offenses, and concluded:

I go through in somewhat painful detail the juvenile

history to demonstrate another painful fact, that is, Mr.

Nappi has consistently been involved in the criminal

justice system as either an arrestee or a--a juvenile

4

delinquent or a convicted felon since the age of ten

with hardly any interruptions except for those periods

of time when he has been incarcerated.

Id. at 30. The Court then considered his adult criminal

history, and commented that Nappi had "been arr ested as

an adult offender and ultimately convicted for criminal

offense[s] every year since he tur ned 13, except for the

period between February 1995 and February 1998 when he

was incarcerated." Id. The Court r emarked: "What I have is

a history of violent acts and patent recidivism and it was

that, that I must look at in terms of sentencing Mr. Nappi,

in the principal way given [by] the discr etion afforded to the

Court by the Sentencing Guidelines." Id. at 31. After voicing

its "concern that whatever this system of fers by way of

leniency or a second chance Mr. Nappi has pushed aside"

and noting that it "must consider that as well in terms of

the discretion afforded under the Guidelines," the Court

imposed its sentence of 105 months' imprisonment, the

maximum sentence within the Guideline range. Id. at 32.

Throughout the Court's lengthy pronouncement, defense

counsel did not object to the Court's reliance upon the state

PSI.

After imposing sentence, the Court asked if ther e was

"anything further" to add to the matter of sentencing.

Again, defense counsel lodged no objection to the Court's

reliance upon the state PSI. Subsequently, Nappi filed a

post-sentencing memorandum, asking the Court to

resentence him so that his federal sentence would run

concurrently with an undischarged state term of

imprisonment pursuant to U.S.S.G. S 5G1.3(c). However,

defense counsel did not seek resentencing based on the

grounds he now asserts on appeal--namely, that the

District Court improperly relied on the undisclosed state

PSI in violation of Rule 32(c)(1).

By Order of January 4, 2000, the District Court amended

the judgment of conviction to reflect that Nappi's sentence

of 105 months "shall run partially concurr ently" to the

unexpired state sentence. Nappi filed a timely notice of

appeal.

5

III. DISCUSSION

We have jurisdiction over this appeal pursuant to both 28

U.S.C. S 1291 and 18 U.S.C. S 3742(a)(1). Because Nappi

did not lodge an objection at the sentencing hearing, we

review the District Court's failure to comply with Rule

32(c)(1) for plain error. Fed. R. Crim. P. 52(b); United States

v. Olano, 507 U.S. 725, 732 (1993); United States v.

Stevens, 223 F.3d 239, 242 (3d Cir . 2000), cert. denied, 121

S.Ct. 1157 (2001); see also United States v. Mangone, 105

F.3d 29, 35 (1st Cir. 1997) (stating that court of appeals

applies plain error standard of review to contention that

district court violated Fed. R. Crim. P. 32(c)(1) by failing to

give adequate notice and opportunity to comment on

court's upward departure where no objection was made in

District Court). As the Supreme Court explained in Olano,

under the plain error standard of Rule 52(b), we may vacate

a sentence and remand for resentencing only if we find that

(1) an error was committed; (2) the err or was plain, that is,

it is "clear" and "obvious;" and (3) the error "affected [the

defendant's] substantial rights." Olano , 507 U.S. at 734;

Stevens, 223 F.3d at 242. This requires an assessment of

the gravity of the error in the context of the proceedings.

See Johnson v. United States, 520 U.S. 461, 469 (1997); see

also United States v. Young, 470 U.S. 1, 16 (1985) (stating

that in evaluating whether the prosecutor's improper

comments constituted plain error that seriously affected the

fairness of the proceedings, the Court must view the

statements or conduct "in context").

In most cases, to affect a defendant's "substantial rights,"

the error must have been "prejudicial," i.e., it "must have

affected the outcome of the district court pr oceedings."

Olano, 507 U.S. at 734. Under plain error r eview, the

defendant rather than the government bears the burden of

persuasion with respect to prejudice. Id. Finally, even

where plain error exists, "the Court of Appeals has

authority to order correction, but is not required to do so."

Id. at 735. We will correct a plain error only if it " `seriously

affect[s] the fairness, integrity, or public reputation of

judicial proceedings.' " Stevens, 223 F.3d at 242-43 n.4

(quoting Olano, 507 U.S. at 732); see also United States v.

Retos, 25 F.3d 1220, 1229 (3d Cir . 1994) (same).

6

On appeal, Nappi argues that the District Court

committed plain error requiring us to vacate his sentence

and remand for resentencing.1 He further claims that the

error affected his "substantial rights" because the Court

sentenced him to the maximum sentence within the

Guideline range. Finally, he urges that this case is one in

which we should exercise our discretion to correct the error

despite his failure to object in the District Court because

the error "seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings." See Olano, 507 U.S. at

736. The government responds that the err or was not plain

and that Nappi's substantial rights were not af fected

because he has not shown how he was prejudiced by his

lack of opportunity to comment on the state PSI.

A.

Nappi contends that the District Court erred by relying

upon the state PSI without providing a copy to counsel

prior to the sentencing proceeding, and without giving

counsel any opportunity to comment on it prior to imposing

sentence. Specifically, Nappi claims that the Court violated

Rule 32(c)(1) because it entitles counsel for the defendant

and the government, at the sentencing hearing, to an

"opportunity to comment on . . . matters r elating to the

appropriate sentence."2 Nappi maintains that the state PSI

qualifies as a "matter relating" to his sentence where, as

here, it is clear that the Court relied upon the document in

sentencing him at the top of the applicable Guideline range.

He argues that in order to ensure that the "opportunity to

_________________________________________________________________

1. While Nappi's brief argues that we should review the Court's

noncompliance with Rule 32 for an abuse of discr etion, Nappi's counsel

conceded at oral argument that our proper standard of review is for plain

error due to counsel's failure to object in the District Court.

2. The text of Rule 32(c)(1) provides in pertinent part:

(1) Sentencing Hearing. At the sentencing hearing, the court must

afford counsel for the defendant and for the Government an

opportunity to comment on the probation officer's determinations

and

on other matters relating to the appr opriate sentence, and must

rule

on any unresolved objections to the presentence report.

Fed. R. Crim. P. 32(c)(1) (emphasis added).

7

comment" requirement in Rule 32(c)(1) has any meaning,

the District Court should have provided counsel with a

copy of the state PSI prior to the sentencing hearing in

order to afford Nappi a sufficient opportunity to review it

and prepare an appropriate response.3

We agree with Nappi's interpretation of Rule 32(c)(1) in

the circumstances presented here. Federal Rule of Criminal

Procedure 32, which governs sentencing procedures in the

federal courts, emanates from Congress' concern for

protecting a defendant's due process rights in the

sentencing process. United States v. Curran , 926 F.2d 59,

61 (1st Cir. 1991); see, e.g., United States v. Greer, 223

F.3d 41, 58 (2d Cir. 2000). Indeed, it is well settled that a

defendant has a due process right to be sentenced based

upon accurate information. E.g., T ownsend v. Burke, 334

U.S. 736, 741 (1948); Moore v. United States, 571 F.2d 179,

183 (3d Cir. 1978). Thus, to safeguar d this right, Rule 32

contains specific requirements that ensure that the

defendant is made aware of the evidence to be considered

and potentially used against him at sentencing, and is

provided an opportunity to comment on its accuracy. See

Moore, 571 F.2d at 182; see also United States v. Blackwell,

49 F.3d 1232, 1235 (7th Cir. 1995) ("It is well established

that a convicted defendant has the right to be sentenced on

the basis of accurate and reliable infor mation, and that

implicit in this right is the opportunity to r ebut the

government's evidence and the information in the

presentence report."); United States v. Jackson, 32 F.3d

1101, 1105 (7th Cir. 1994) (Coffey, J., concurring) ("We

begin with the well-established premise that a defendant

_________________________________________________________________

3. Initially, Nappi relied upon Rule 32(c)(3)(A) to argue that the

District

Court should have provided him and his counsel with a copy of the state

PSI prior to the hearing, and given them an opportunity to comment on

it. However, at oral argument his counsel focused upon the "opportunity

to comment" language in Rule 32(c)(1). In any event, we point out that,

as a technical matter, Rule 32(c)(3)(A) only requires the District Court

to

allow the defendant and his counsel a reasonable opportunity to

comment on any information excluded fr om the federal PSI under Rule

32(b)(5). And it is clear that the state PSI does not fall within the

category of information that was excluded fr om the federal PSI pursuant

to Rule 32(b)(5).

8

has a right to be sentenced on the basis of accurate

information, . . . which implicates the cor ollary `right to

know what evidence will be used against him at the

sentencing hearing.' ") (quoting United States v. Morales,

994 F.2d 386, 389 (7th Cir. 1993)) (internal citation

omitted); United States v. Cervantes, 878 F .2d 50, 56 (2d

Cir. 1989) (noting that requirements of mandatory

disclosure of PSI and opportunity to respond were

introduced to "ensure accuracy of sentencing information").

Among other procedural safeguards in Rule 32 that were

designed to ensure that the defendant is sentenced based

on accurate information,4 Greer, 223 F.3d at 58;United

States v. Gomez, 831 F.2d 453, 457 (3d Cir. 1987), Rule

32(c)(1) plainly states that counsel for the defendant and

the government must be provided with an"opportunity to

comment" at the sentencing hearing on the infor mation and

conclusions in the PSI and "other matters r elating to the

appropriate sentence." Fed. R. Crim. P . 32(c)(1). The

Supreme Court has explained that the "opportunity to

comment" language found in Rule 32(c)(1) pr ovides for

"focused, adversarial development of the factual and legal

issues relevant to determining the appr opriate Guidelines

sentence." Burns v. United States, 501 U.S. 129, 138 (1991)

(holding that district court must provide "r easonable notice"

of intent to upwardly depart from Guideline range).

In the instant case, the District Court relied not only on

the federal PSI the Probation Office pr epared, but also on

Nappi's state PSI that the Probation Office had in its

possession. Nappi's state PSI clearly constitutes a"matter

relating to the appropriate sentence." Id. Thus, under plain

_________________________________________________________________

4. Those additional requirements set forth in Rule 32 relating to the

information to be used at sentencing include the following: (1) Rule

32(b)(1) states that a presentence report must be prepared in most

cases; (2) Rule 32(b)(4) and (5) set forth the specific information to be

included in and excluded from the PSI; (3) Rule 32(b)(6) provides for full

disclosure to the defendant and counsel of the federal PSI within a set

time period; (4) Rule 32(b)(6) allows the defendant to make specific

objections to the factual information and conclusions in the PSI; and (5)

Rule 32(c)(1) requires the court to make afinding on "each matter

controverted" in the PSI or expressly state that no finding is necessary

because the matter will not be taken into account at sentencing.

9

language of Rule 32(c)(1), Nappi was entitled to an

opportunity to comment on the information in the report

during the sentencing hearing. Moreover , given that the

Rule is intended to promote "focused, adversarial

development of the factual and legal issues," it follows that

the Rule requires that counsel for the defendant and the

government be provided with a meaningful opportunity to

address the information at issue. Thus, we hold that where,

as here, counsel are faced with having to review and

address the contents of an additional document on which

the Court intends to rely at sentencing, a meaningful

opportunity to comment requires the Court, in accordance

with Rule 32(c)(1), to provide a copy of the document to

counsel for the defendant and the government within a

sufficient time prior to the sentencing hearing to afford

them with a meaningful opportunity to comment on it at

sentencing and, depending on the document, pr epare a

response or contest it. See United States v. Hayes, 171 F.3d

389, 392 (6th Cir. 1999) ("Rule 32 r equires that except in

limited circumstances, . . . the defendant must have the

opportunity to review information that will be used for

sentencing."); United States v. Burger , 964 F.2d 1065, 1072

(10th Cir. 1992) (vacating sentence wher e victim's letter

impacted restitution order and the court and Probation

Office failed to provide copies to counsel, stating that "[w]e

agree with [defendant] that the utilization of the letters

without disclosure to him was violative of Fed. R. Crim. P.

32"); United States v. Connor, 950 F .2d 1267, 1278 (7th Cir.

1991) (dicta) (commenting that district court "should

endeavor to insulate themselves" from extraneous

documents it receives prior to sentencing unless it "makes

them known to the parties"); Curran, 926 F.2d at 63

(exercising supervisory powers and adopting rule that

sentencing courts considering extraneous documents

should either "make clear that the document is not being

used for its factual content, or should disclose to the

defendant as much as was relied upon, in a timely manner,

so as to afford the defendant a fair opportunity to examine

and challenge it");5 see also United States v. Berzon, 941

_________________________________________________________________

5. In Curran, the district court r eferred to information contained in

letters from the defendant's victims in imposing its sentence without

disclosing the letters to the defendant or his counsel. The Court of

10

F.2d 8, 18 (1st Cir. 1991) (stating that district court should

have alerted the defendant, in advance of the sentencing

hearing, that it expected to consider co-defendant's

testimony at the sentencing hearing).

By stating that Rule 32(c)(1) requires the District Court to

disclose such additional documents "within a sufficient

time prior to the sentencing hearing to affor d them with a

meaningful opportunity to comment," we refrain from

adopting a more rigid rule because the time r equired in

order for counsel to have a meaningful opportunity may

vary depending on the circumstances. For example, we do

not foreclose the possibility that it would be sufficient

prehearing disclosure under Rule 32(c)(1) if the Court

shared the documents with defense counsel on the date of

the scheduled sentencing hearing, if the cir cumstances

warranted that procedure. Depending on the number and

complexity of the documents at issue, such pr ehearing

notice could suffice if the Court adjourned the sentencing

for a reasonable period in order to pr ovide counsel with

sufficient time to prepare a response. The District Court

should be guided by the principal goal of pr oviding

adequate notice and opportunity to respond to the factual

information the Court intends to consider at sentencing.

Requiring reasonable prehearing disclosur e of the

documents that the Court intends to rely upon at

sentencing comports with the manner in which Rule 32

_________________________________________________________________

Appeals for the First Circuit found that Rule 32 technically did not apply

because the letters referenced at the sentencing hearing were not made

part of the federal PSI. Curran, 926 F .2d at 62. It thus exercised its

supervisory powers to fashion its rule that district courts must disclose

extraneous documents to defendants "in a timely manner" if they intend

to rely upon them at sentencing. As is evident from the text, we agree

with the legal rule adopted in Curran, but we premise our holding on the

language of Rule 32(c)(1). E.g., Hayes , 171 F.3d at 393 (disagreeing with

Curran court's conclusion that Rule 32 does not require disclosure of

extraneous documents but agreeing with r esult and rule it adopted); see

also Burns, 501 U.S. at 135-37 (interpr eting Rule 32 as requiring a

district court to give a defendant prior war ning that it is considering

an

upward departure on a basis not mentioned in the federal PSI, despite

the fact that the Rule's literal language contains no such requirement).

11

prescribes disclosure of the federal PSI to the defendant

and counsel, which, in most circumstances, serves as the

critical document providing the factual and legal

information bearing upon the Court's sentencing

determination. See Moor e, 571 F.2d at 182 (stating that an

"abiding concern about the use by a trial judge of material

derived from a [presentence report] is that it may contain

false or unreliable information," but noting that "this

danger is somewhat alleviated" by disclosur e requirement

in Rule 32); see also Curran, 926 F.2d at 64 & n.4 (noting

that "concern for ensuring the reliability of information

used at sentencing seems to have informed the disclosure

policy embodied in Rule 32"). The Advisory Committee's

Note to Rule 32 explains that the Rule was amended in

1983 to require the district court, on its own initiative, to

afford the defendant and his counsel an opportunity to read

and comment on the PSI within "a reasonable time before

imposing sentence," because "if the report is not made

available to the defendant and his counsel in a timely

fashion, and if disclosure is only made on r equest, their

opportunity to review the report may be inadequate." Fed.

R. Crim. P. 32 advisory committee's note (1983 amends.).6

Id.

_________________________________________________________________

6. A Prior to 1983, Rule 32(c)(3)(A), as enacted in 1975, had required the

court to allow defense counsel or the defendant"to read" the PSI and

comment on it, but disclosure was requir ed only "before imposing

sentence," and only upon the defendant's specific request. The pre-1975

version of Rule 32(c)(2) permitted, but did not require, the court to

disclose the contents of the PSI to the defendant or his counsel and

provide an opportunity to comment on it. Fed. R. Crim. P. 32 advisory

committee's note (1974 amends.).

After the 1983 amendment, Rule 32(c)(3)(A) was amended again in

1989 to change the "reasonable time" language to require that the

defendant and defense counsel be provided with"a copy of the PSI at

least 10 days prior to sentencing," unless the defendant waives that

minimum period. Id. advisory committee's note (1989 amends.). Finally,

in 1994, Rule 32 was reorganized and amended, and Rule 32(b)(6) now

provides that the probation officer must present the PSI to the

defendant, the defendant's counsel, and the gover nment's counsel, no

later than 35 days before the sentencing hearing, unless the defendant

waives that minimum period. Moreover Rule 32(b)(6)(B),(C), and (D) now

provide explicit deadlines and guidance on r esolving disputes about the

contents of the PSI. Id. advisory committee's note (1994 amends.).

12

As a matter of logic, regardless of whether the relevant

factual information is derived from the federal PSI or some

other additional source, the defendant must be afforded the

opportunity to review the evidence assembled against him

for sentencing purposes and to prepare a meaningful

response. And unless disclosure of the additional

documents pursuant to Rule 32(c)(1) is made sufficiently in

advance of the sentencing hearing to permit counsel to

review the information and to allow infor med comment, the

purpose of promoting accuracy and fairness in the

sentencing process, which undergir ds Rule 32, will be

defeated. E.g., Burger, 964 F .2d at 1073; Berzon, 941 F.2d

at 18; see also 3 Charles Alan Wright, Federal Practice and

Procedure: Criminal S 524 (2d ed. 1982) (noting that

disclosure of the PSI "is not an end in itself," but rather, it

"provide[s] an opportunity for the defense to comment on

statements . . . and to correct mistakes"); cf. Burns, 501

U.S. at 135-36 ("In our view, it makes no sense to impute

to Congress an intent that a defendant have the right to

comment on the appropriateness of a sua sponte departure

but not the right to be notified that the Court is

contemplating such a ruling.").

In the instant case, Nappi had no knowledge that the

Court even had the state PSI in its possession, let alone

would consider it, until the Court mentioned it while it was

imposing its sentence.7 In the circumstances, the Court

effectively blind-sided Nappi's counsel with the document,

and completely foreclosed his ability to r espond

meaningfully, or for that matter, at all.

_________________________________________________________________

7. While the government surmises that Nappi "in all likelihood received

a copy of the state PSI prior to being sentenced in New Jersey state

court" because N.J. Crim. R. 3:21-2 states that the PSI "shall be

furnished to the defendant and the prosecutor," Appellee's Br. at 14 n.5,

the record in the instant case does not r eveal whether Nappi ever

received a copy of the state PSI during the state proceedings. Moreover,

at oral argument, Nappi's counsel stated he was not certain whether his

client had received the report during the state sentencing proceeding. In

any event, it is clear that Nappi and his attor ney did not receive a copy

of the state PSI in the context of the federal sentencing hearing, which

occurred several years after the report was initially prepared.

13

The government urges that Rule 32(c)(1) does not

mandate that the District Court disclose all of the

additional documents it receives in connection with a

defendant's sentence, and, accordingly, we should not read

into the Rule a requirement that the Court must disclose

documents that it intends to rely upon at the sentencing

hearing. The government's reading of the rule, however,

cannot be squared with the text of Rule 32(c)(1). The

government's position contravenes the plain language of

Rule 32(c)(1) because it undermines the expr ess right to

comment, through counsel, "upon matters r elating to the

appropriate sentence." As we have indicated, the Rule

protects the defendant's right to an opportunity--a

meaningful opportunity--to comment on infor mation

relating to the federal sentence about to be imposed. And

absent advance disclosure of the documents the Court has

received and intends to rely upon at sentencing, defense

counsel would have no ability to comment in an ef fective

manner. See Burns, 501 U.S. at 136 ("The right to comment

. . . has little reality or worth unless one is informed that

a decision is contemplated.") (internal quotation marks

omitted).

Further, the government's position runs counter to the

Rule's stated "purpose of promoting focused, adversarial

resolution of the legal and factual issues r elevant to fixing

Guidelines sentences," id. at 137, and congressional intent

in promulgating the Rule in the first place. Obviously,

imposing a prehearing disclosure r equirement works to

counsels' benefit because it affords them more time to

compose their thoughts and consider their possible

responses than if the sentencing court wer e to inform

counsel of the existence, and contents of, the document for

the first time during the sentencing hearing. The additional

time to prepare thus increases the likelihood that the

responses provided will be thoughtful and well reasoned,

which in turn furthers the adversarial pr ocess

contemplated by Rule 32.

Moreover, as we have explained, the disclosure

requirements in Rule 32 were developed to ensure that the

defendant is sentenced based upon accurate infor mation.

Berzon, 941 F.2d at 18; see United States v. Reiss, 186 F.3d

14

149, 157 (2d Cir. 1999). If we accepted the government's

position and adopted an interpretation of Rule 32(c)(1) that

would permit the District Court to inexplicably withhold

from the parties a document that it relies upon in imposing

its sentence, we would be opening the door to a gr eater

possibility that the defendant could be sentenced based

upon inaccurate sentencing information, rather than

eliminating that very real danger from the sentencing

process.

Finally, our view that Rule 32(c)(1) requir es reasonable

prehearing disclosure of additional documents considered

by the Court is consistent with the Supreme Court's

analysis in Burns v. United States, where the Court,

although addressing a slightly differ ent issue under Rule

32, reached the same conclusion regar ding the importance

of notice and opportunity to comment in the sentencing

process. In Burns, the Court r eviewed a district court's sua

sponte upward departure from the applicable Guideline

range. 501 U.S. at 135-37. The district court had given the

defendant no advance notice of its intent to depart, and no

opportunity to comment on it prior to imposing sentence.

On appeal, the defendant argued that Rule 32(a)(1)

(currently Rule 32(c)(1)) obliged the district court to furnish

advance notice of its intent to upwardly depart from the

Guideline range. He based his position on the language in

Rule 32(a)(1) which required the District Court to afford the

parties with "an opportunity to comment upon . . . matters

relating to the appropriate sentence." Id. The Court of

Appeals for the District of Columbia Circuit adopted the

government's reading of Rule 32 and affirmed the sentence.

Applying a textual analysis, the court of appeals held that

the Rule contained no express language r equiring a district

court to provide notice of the court's intent to upwardly

depart from the Guideline range. Id. at 132.

On appeal to the Supreme Court, the Court r ejected the

court of appeals' interpretation of Rule 32(a)(1), grounding

its analysis on the "textual and contextual evidence of

legislative intent."8 First, it pointed out that the court of

_________________________________________________________________

8. In November 1991, the Sentencing Commission added Application

Note 1 to U.S.S.G. S 6A1.2 to requir e reasonable notice of an intention

to depart, reflecting the Supreme Court's decision in Burns. See U.S.S.G.

app. C, amend. 425 (1998).

15

appeals' reading of Rule 32(a)(1) "r endered meaningless the

parties' express right `to comment upon matters relating to

the appropriate sentence.' " Id. at 136 (quoting Rule

32(a)(1)). Second, it rejected the gover nment's argument,

predicated on congressional silence in Rule 32(a)(1), as

being inconsistent with Rule 32's "purpose of pr omoting

focused, adversarial resolution of the legal and factual

issues relevant to fixing Guidelines sentencing." Id. at 137.

It concluded that

before a district court can depart upwar d on a ground

not identified as a ground for upward departure either

in the presentencing report or in a pr ehearing

submission by the government, Rule 32 r equires that

the district court give the parties reasonable notice that

it is contemplating such a ruling. This notice must

specifically identify the ground on which the district

court is contemplating an upward departur e.

Id. at 138-39.9

In the instant case, the government's ar gument is a

textual one, substantially similar to the one the Supreme

Court expressly rejected in Bur ns. It asks us to elevate form

over substance and adopt a construction of Rule 32(c)(1),

that, as in Burns, would be contrary to the language and

purpose of the Rule. But the Court's holding and analysis

in Burns confirms that we must reject the government's

proposed reading of the phrase "opportunity to comment

. . . on matters relating to the appropriate sentence" as not

requiring disclosure of a document to counsel on which the

Court intends to rely at sentencing. Indeed, the fact that

the Rule does not expressly requir e disclosure is not

dispositive when, as in Burns, "all other textual and

contextual evidence of congressional intent" points to the

opposite conclusion. Id. at 137.

_________________________________________________________________

9. The Court did not indicate what "reasonable notice" meant in practice.

It explicitly stated that "[b]ecause the question of the timing of the

reasonable notice required by Rule 32 is not before us, we express no

opinion on that issue. Rather, we leave it to the lower courts, which, of

course, remain free to adopt appropriate procedures by local rule."

Burns, 501 U.S. at 129 n.6.

16

We also are not persuaded by the gover nment's argument

that the District Court cured its error in not sharing the

document with counsel by actually affor ding counsel with

an opportunity to comment when it asked if ther e was

"anything further" to discuss after it sentenced Nappi to

105 months' imprisonment. The concept of meaningful

opportunity to comment would be turned on its head if we

were to find that such a question, at the conclusion of the

sentencing hearing, constituted an opportunity for

comment on a document after the Court has pr onounced

its sentence. At that point, the Court has alr eady imposed

its sentence, and any objection to the contents of the

document is a fruitless exercise as far as actually

influencing the sentencing court is concer ned.10 Rather, the

purpose behind Rule 32(c)(1) as it applies in this context is

to allow the defendant an opportunity to rebut or explain

the contents of a document in an attempt to persuade the

court concerning its meaning and/or relevancy before it

sentences the defendant.

In sum, we are convinced that the District Court violated

Rule 32(c)(1) because it failed to disclose the state PSI to

counsel for the defendant and the government within a

sufficient time prior to the sentencing hearing, and did not

provide counsel with an opportunity to comment on the

contents of the document prior to pronouncing its sentence.

B.

Our conclusion that the Court violated Rule 32(c)(1) does

not end our inquiry. We must determine whether the error

was plain, that is, "clear or obvious," and the defendant

must show that the error "affect[s] substantial rights." We

will not dwell on the obviousness of the Rule 32(c)(1) error

under current law because we believe that Nappi's

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10. Of course, a belated objection is not entir ely without purpose, as it

would preserve the issue for review by the appellate court. By referring

to a post-sentencing pronouncement objection as"fruitless," we mean

only to highlight the fact that by that point in the proceeding, the Court

has already made up its mind that the document is relevant, and has

already formed an opinion as to how it af fects the sentencing

determination.

17

substantial rights were not affected.11 In Olano, the Court

explained that "in most cases, [`affect[s] substantial rights']

means that the error must have been prejudicial: It must

have affected the outcome of the district court proceedings."

Olano, 507 U.S. at 734. The Court also clarified that under

plain error review "the defendant rather than the

government bears the burden of persuasion with respect to

prejudice." Id.

Nappi urges that the appropriate course of action to cure

the Rule 32(c)(1) violation that occurred is to vacate the

District Court's sentence of 105 months' imprisonment, and

remand the matter for resentencing. His primary contention

is that we should be guided by our analysis in Unites States

v. Faulks, 201 F.3d 208 (3d Cir. 2000), a case in which we

vacated a defendant's federal sentence and r emanded for

resentencing based upon the District Court's failure to

pronounce its sentence orally and in the defendant's

presence, in violation of Fed. R. Crim. P . 43.

_________________________________________________________________

11. The error here was the failur e to give counsel the "opportunity to

comment . . . on matters relating to the appr opriate sentence." Fed. R.

Crim. P. 32(c)(1). We have concluded that the state PSI was such

material, and that the District Court should have pr ovided counsel with

a meaningful opportunity to comment by pr oviding the document in

advance of the sentencing hearing. We concede that it could be argued

that, in crafting the way in which we give meaning to the concept of

"opportunity to comment on . . . matters r elating to the appropriate

sentence," we have established a prehearing disclosure requirement that

is not so "obviously" or "clearly" mandated by the specific language of

Rule 32(c)(1), and that accordingly, the District Court's failure to

disclose

the document to counsel cannot constitute "plain error." On the other

hand, because an error is clear if it is "clear under current law," Olano,

507 U.S. at 734, it could be argued that case law we reference above has

prescribed the type of disclosure we endorse, such that the error was

clear under current law. See United States v. Clark, 237 F.3d 293, 298

(3d Cir. 2001) (stating that defendant's pr oposed methodology for

calculating Guidelines sentence was plausible but that he could not

demonstrate that the court's use of a contrary methodology was "an

error [which was] clear under curr ent law," especially in view of the

existing case law from other courts of appeals that supported district

court's methodology). However, as we have indicated, we need not, and

will not, address that issue.

18

In the alternative, Nappi maintains that he has satisfied

his burden of proving prejudice in view of the fact that the

District Court sentenced him to the maximum sentence

allowable in the Guideline range--105 months'

imprisonment. His position appears to be that, in view of

the Court's obvious reliance upon the state PSI, it is clear

that the Court would have sentenced him to a lower

sentence within the Guideline range if it had not considered

the information.

We begin with Nappi's argument that our analysis in

Faulks compels the conclusion that vacatur and r emand is

appropriate, as it need not detain us long. Hefirst points

out that in Faulks, we vacated a sentence and remanded

for resentencing because we could not "know with sufficient

certainty that the error [in failing to impose the Court's

sentence orally in the defendant's physical pr esence] was

harmless." Id. at 213. Nappi then r elies upon our

statements in Faulks that compliance with Rule 43 was not

"a meaningless formality" but rather"a fundamental

procedural guarantee" that "implicate[d] constitutional

concerns," id. at 211-13, to contend that the procedural

protection of being afforded an opportunity to comment on

information affecting the sentence is equally as

fundamental. From these premises, he ur ges us to vacate

his sentence and remand for resentencing in view of the

Court's disregard of Rule 32(c)(1), even if, strictly speaking,

he cannot affirmatively demonstrate any pr ejudice from the

error.

We are not persuaded by Nappi's attempted analogy to

Faulks for two reasons. Its primary analytical flaw is that it

overlooks a critical distinction between Faulks and this

case: in Faulks, we indicated that wer e we to examine the

harmlessness, it was the government , rather than the

defendant, that had the burden of establishing the error's

harmlessness under Rule 52(a), and we stated that it had

not "even attempted to meet its burden of establishing the

error's harmlessness." Id. at 212-13. Here by contrast,

Nappi bears the burden of persuasion on the issue of

prejudice under Rule 52(b) because he failed to object to

the Rule 32(c)(1) violation during the course of the District

Court proceedings. Thus, the fact that we vacated Faulks'

19

sentence and remanded for resentencing where there was

no showing of harmlessness provides no support for the

conclusion that the same result should obtain in the

instant case, which is governed by the mor e stringent plain

error standard of review mandated by Rule 52(b).

Nappi's reliance on Faulks is further misplaced because

it is bottomed on the incorrect premise that the Court's

violation of Rule 32(c)(1) implicates fundamental

constitutional concerns as did the Rule 43(a) error involved

in Faulks. In Faulks, we noted that the "Rule 43 error in

this case implicates constitutional concerns." Faulks, 201

F.3d at 213. We found United States v. Moree, 928 F.2d

654, 656 (5th Cir. 1991), which focused on the "elementary"

nature of the defendant's right to be pr esent at the time of

sentencing, directly applicable. Subsequently in Stevens, we

hinted that the Faulks court found that the violation of

Rule 43 amounted to a structural constitutional defect in

sentencing, although the Faulks opinion did not explicitly

so state. Stevens, 223 F.3d at 245 (citing Faulks, 201 F.3d

at 211).

The Supreme Court has recognized a "very limited class

of fundamental constitutional errors" that"infect the entire

trial process" and are so serious that they "require

automatic reversal . . . without regar d to their affect on the

outcome." Neder v. United States, 527 U.S. 1, 7, 8 (1999)

(such errors including complete denial of counsel, biased

trial judge, racial discrimination in selection of a grand

jury, denial of self-representation at trial, denial of a public

trial, and defective reasonable-doubt jury instruction). In

Stevens, we rejected the defendant's attempt to add to this

"very limited class of cases" the district court's failure to

verify that the defendant had read and discussed the

federal PSI with his attorney in accor dance with Rule

32(c)(3)(A). Stevens, 223 F.3d at 244. We concluded that the

court failed to comply with Rule 32(c)(3)(A)'s verification

requirement, but that the violation did not rise to the level

of a constitutional error, let alone a structural defect

requiring automatic vacatur of the sentence without regard

to the error's affect on the outcome of the proceedings. Id.

We view the Rule 32(c)(1) error her e as similar to the Rule

32(c)(3)(A) violation at issue in Stevens. While the

20

procedures set forth in Rule 32 ar e intended to safeguard

the defendant's due process rights at sentencing, e.g.,

Curran, 926 F.2d at 61, and if a defendant were sentenced

based upon inaccurate information, his due pr ocess rights

would be violated, e.g., Townsend , 334 U.S. at 741; Moore,

571 F.2d at 183-84, it is clear that the err or that occurred

here, without more, is not of constitutional dimension. E.g.,

United States v. Simmonds, 235 F.3d 826, 837 (3d Cir.

2000); Curran, 926 F.2d at 61; see also Fed. R. Crim. P. 32,

advisory committee's note (1966 amends.) ("It is not a

denial of due process of law for a court in sentencing to rely

on a report of a presentence investigation without

disclosing such report to the defendant or giving him an

opportunity to rebut it.").

Accordingly, Nappi bears the burden of demonstrating

that he was prejudiced by the District Court's error. We

agree with the government's position that Nappi has not

made a sufficient showing of prejudice to warrant the

conclusion that the Rule 32(c)(1) error "af fect[ed] [his]

substantial rights." Olano, 507 U.S. at 734. We reject

Nappi's argument that we should vacate and r emand the

matter for resentencing based upon the natur e of the right

at stake and the magnitude of the District Court's error. To

the contrary, Nappi must convince us that, had he known

that the District Court was going to rely on the state PSI,

he would have done something by way of argument or proof

relating to the document that probably would have

impacted upon the Court's sentence. As we have indicated,

under the plain error standard, Nappi bears the burden of

establishing that the error "affected the outcome of the

district court proceedings." Olano, 507 U.S. at 734. On this

record, we conclude that Nappi has not done so, and that

it would probably be difficult to prove in any event under

the facts presented.

First, it is significant that defense counsel has not

provided any indication as to how, if given the proper notice

and opportunity to comment, he could have challenged the

information in the report in a manner that would have led

the District Court to impose a lesser sentence within the

Guideline range. Importantly, defense counsel has made no

suggestion that the information in the r eport was

21

inaccurate or false, or that the Court mischaracterized any

of the information it cited from the state PSI. E.g., Stevens,

223 F.3d at 243 (finding no prejudice from violation of Rule

32(c)(3)(A) where defendant failed to assert any inaccuracy

in the PSI). In the circumstances, he has failed to show us

anything that would even justify an inference, let alone

prove, that the District Court's sentence was bound to be

different if Nappi had been affor ded a copy of the state PSI

in advance of the hearing and had been given an

opportunity to comment on it.12 See United States v. Garcia,

78 F.3d 1457, 1465 (10th Cir. 1996) (where district court

evaluated witness's credibility by relying upon extra-record

affidavit at sentencing without first infor ming defendant,

court of appeals stated that district court violated Rule

32(c)(1) but found no prejudice; court noted that

"[d]efendant fails to allege any facts or law that suggest the

court's opinion of [the witness] would have changed if

defendant had been aware of the . . . affidavit prior to

sentencing"); United States v. Lockhart, 58 F.3d 86, 89 (4th

Cir. 1995) (concluding that defendant failed to demonstrate

that he was prejudiced by the court's Rule 32(c)(3)(A)

violation where he could not "point[] to any portion of the

presentence report that he would have challenged had the

district court made an express inquiry"); United States v.

Rangel-Arreola, 991 F.2d 1519, 1526 (10th Cir. 1993)

_________________________________________________________________

12. In evaluating whether Nappi has satisfied his burden of showing

prejudice, it is important to keep in mind that the District Court could

have relied upon the state PSI if it had complied with Rule 32(c)(1). All

the Court was required to do was to disclose the state PSI to counsel

prior to the sentencing hearing and affor d counsel an opportunity to

comment on it before pronouncing its sentence. Thus, the relevant

prejudice inquiry is whether, and how, defense counsel could have

rebutted the contents of the report, and whether the Court's sentencing

determination would have been differ ent if counsel had been given the

opportunity to do so; it is not whether the Court would have imposed a

lighter sentence within the Guideline range in the absence of its

consideration of the state PSI. However, even if we were looking at the

prejudice issue from that perspective, Nappi could not demonstrate

prejudice in any event. As we explain in the text, the information in the

state PSI was largely cumulative, and ther e was a sufficient basis for

the

Court's sentence based on the factual information already found in the

federal PSI.

22

(affirming sentence where district court violated Rule 32 by

failing to determine whether defendant had opportunity to

review PSI and discuss it with his attor ney because

defendant "suffered no prejudice;" court noted that

defendant "points to no factual inaccuracies used in

computing his sentence"); United States v. Stevens, 851

F.2d 140, 145 (6th Cir. 1988) (affir ming sentence

notwithstanding district court's failure to determine

whether defendant had opportunity to review PSI and

discuss it with counsel; court of appeals found that

defendant did not establish prejudice because district court

did not rely on inaccurate information in sentencing

defendant).13

Further, we doubt whether it would be possible to prove

harm, in any event. As the government correctly points out,

the vast majority of the information contained in the state

PSI was also contained in the federal PSI, either in the

"Juvenile Adjudications" section or elsewher e in the report.

Even by Nappi's own admission, the discrepancies were few

in number and the overlap was significant. Thus, rather

than supplying totally new factual information concerning

the extent of Nappi's juvenile criminal history, the state PSI

supplemented, but only slightly, the information already

found in the federal PSI. See Appellant's Br . at 13

_________________________________________________________________

13. See also United States v. Moore , 958 F.2d 646, 651 (5th Cir. 1992)

(rejecting argument that court violated Rule 32 in considering

confidential information in sentencing defendant without providing an

opportunity to comment; court noted that defendant did not object below

and that "[e]ven in these proceedings, there is no claim made that the

trial judge's information was inaccurate"); United States v. George, 911

F.2d 1028, 1029-30 (5th Cir. 1990) (holding that district court complied

with former Rule 32(a)(1) where court asked counsel during sentencing

hearing whether circumstances warranted upwar d departure and

counsel responded; court rejected defendant's argument that notice

provided was insufficient and stated that defendant "has not shown how

he was prejudiced by this notice [given], how he could have been helped

by additional notice or time"); United States v. DeBardeleben, 740 F.2d

440, 447 (6th Cir. 1984) (affirming sentence where court heard evidence

at sentencing hearing not contained in presentence report; court based

decision in part on fact that defendant "does not suggest what rebuttal

he could make [to the evidence] other than his blanket denial, which the

court had already heard").

23

(characterizing state PSI as "supplement[ing] Nappi's

juvenile history as stated in the federal pr esentence

report"). We also recognize that the state PSI made it easier

for the Court to consider the totality of the juvenile history

because it listed each of Nappi's contacts with the juvenile

justice system in chronological order . But the fact still

remains that the amount of overlap in the federal and state

PSIs supports the conclusion that the information in the

state PSI was largely cumulative, which weighs against a

finding of prejudice. See United States v. Patrick, 988 F.2d

641, 648 (6th Cir. 1993) ("Where the evidence upon which

the sentencing court relies without previously notifying the

defendant is of the same character, allows the same

inferences, and, most importantly, is subject to the same

arguments in rebuttal as evidence in the record of which

the defendant is already aware, it seems logical to conclude

that advance notice would not give the defendant any

additional incentive or ability to challenge the evidence.");

cf. Hayes, 171 F.3d at 394-95 (court found that violation of

Rule 32(c)(1) affected substantial rights based in part on

the fact that there was no indication that the information

provided in victims' letters, on which the district court

relied in sentencing the defendant, was similar to or

cumulative of evidence already presented).

Additionally, given the wealth of information already in

the federal PSI, we have little difficulty infinding that there

was a sufficient amount of information concerning Nappi's

juvenile history in the federal PSI that could easily have led

the Court to the same decision--i.e., that Nappi's numerous

arrests and convictions warranted the harshest sentence

available within the applicable Guideline range. This fact

also supports the conclusion that there was no prejudice in

the circumstances presented here. See Patrick, 988 F.2d at

648 (finding harmless error in failing to apprise defendant

of court's reliance on extra-recor d information where "the

other evidence already before the sentencing judge and a

part of the presentence report fully supported the judge's

ultimate finding that [defendant's] r ole was that of a

leader."). Accordingly. we conclude that Nappi has not

shown that he was prejudiced by the Court's err or.14

_________________________________________________________________

14. Given this conclusion, we need not consider the last part of the

Olano framework--whether we should exer cise our discretion to correct

24

IV. CONCLUSION

We recognize, of course, that the "sentencing judge may

attend to more than the PSI when making sentencing

decisions," United States v. Pandiello, 184 F.3d 682, 686

(7th Cir. 1999), and our holding today does not foreclose a

sentencing court's reliance upon additional documents if it

is helpful to do so. Nevertheless, when the District Court

relies on documents other than the federal PSI at

sentencing, we hold that Rule 32(c)(1) requir es the District

Court to share any such documents with counsel for the

defendant and the government within a sufficient time prior

to the sentencing hearing to afford them a meaningful

opportunity to respond. Rule 32(c)(1) also mandates that

the Court provide counsel with a reasonable opportunity to

comment on any such additional information prior to

pronouncing its sentence.

We hold that the District Court erred in sentencing Nappi

based in part on information found in the state PSI.

However, Nappi has not met his burden of establishing that

his substantial rights were affected. W e therefore will

AFFIRM the District Court's judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

the error because it "seriously affects the fairness, integrity, or public

reputation of judicial proceedings." Stevens, 223 F.3d at 242 (quoting

Olano, 507 U.S. at 732).

25