United States v. Edward Carter

CLAY, Circuit Judge,

dissenting.

On appeal, Defendant renews his objection, made originally at sentencing, to the Probation Department’s assessment that Defendant had two prior unrelated felony convictions. Pursuant to Federal Rule of Criminal Procedure 32, the district court was required to rule on this matter, but the district court failed to comply with this rule. As a result, the case is required to be remanded for a ruling by the district court on Defendant’s objection.

At sentencing, Defendant objected to the Probation Department’s finding that there were two prior unrelated felony convictions. Defendant argued that two prior felony convictions for offenses committed in January 1981 were consolidated for sentencing and thus were related under U.S.S.G. § 4A1.2, Application Note 3(C). The district court denied the objection, along with seven other objections, 1 without ever addressing any of the objections individually. The district court’s entire consideration of all eight objections consisted of a single statement summarily adopting the presentence report: “... I agree with the conclusions reached by the Probation Department and I believe that none of the objections raised are with merit....” (J.A. at 316.)

*412 The district court’s failure to address Defendant’s objections violated Federal Rule of Criminal Procedure 32, which states,

At sentencing, the court ... must — for any disputed portion of the presentence report or other controverted matter— rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.

Fed.R.Crim.P. 32(i)(3)(B). In requiring the district court to “rule” on all disputed matters, Rule 32 does not define what is required by the term “rule” — Rule 32 never specifies precisely what level of depth or explanation is required from the district court. Thus, it is conceivable that in certain cases there might be uncertainty as to whether a district court’s terse explanation for denying an objection would satisfy Rule 32.

However, such theoretical questions regarding the level of depth needed to constitute a ruling are unnecessary for the purposes of deciding the present case. This Court has held that a district court’s blanket reliance on the presentence report — as occurred in the present case— does not constitute a “ruling.” United States v. Darwich, 337 F.3d 645, 667 (6th Cir.2003) (“exclusive reliance on the PSR when a matter is in dispute cannot be considered a ruling.”). See also United States v. Tarwater, 308 F.3d 494, 518 (6th Cir.2002) (“Because the purpose of the rule is to ensure that sentencing is based on reliable facts found by the court itself after deliberation, a court may not merely summarily adopt the factual findings in the presentence report or simply declare that the facts are supported by a preponderance of the evidence. United States v. Corrado, 227 F.3d 528, 540 (6th Cir.2000); United States v. Tackett, 113 F.3d 603, 613 (6th Cir.1997).”). Indisputably, the district court violated Rule 32, in the present case.

Established precedent in this Circuit makes clear that a remand is required where the district court has violated Rule 32 by relying solely on the presentence report. In United States v. Corrado, 227 F.3d 528 (6th Cir.2000), and predecessor cases cited in Corvado, the district court had relied solely on the presentence report; this Court remanded, requiring “literal compliance” with Rule 32:

The Federal Rules of Criminal Procedure provide that, for each sentencing matter controverted,

the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing. A written record of these findings and determinations must be appended to any copy of the presentence report made available to the Bureau of Prisons.

Fed.R.Crim.P. 32(c)(1).[ 2 ] This court has required “literal compliance” with this provision, stating that it “helps to ensure that defendants are sentenced on the basis of accurate information and provides a clear record for appellate courts, prison officials, and administrative agencies who may later be involved in the case.” United States v. Tackett, 113 F.3d 603, 613-14 (6th Cir.1997).

*413 In the present case, the district court did not comply with the requirements of Rule 32(c)(1). Both Corrado and Tocco objected to several findings in the pre-sentence report, including the leadership role of the defendants, the finding of a conspiracy to murder Bowman, and the determination that Corrado was armed at the time that the defendants extorted money from Sophiea. The district court did not set out findings as to any of these issues at sentencing. Instead, it either summarily adopted the findings of the presentence report or simply declared that the enhancement in question was supported by a preponderance of the evidence....

In Tackett , the defendants similarly objected to their sentences on the ground that the district court made no findings as to contested issues of fact. After listening to counsels’ arguments regarding an enhancement for obstruction of justice, the district judge “stated simply that ‘the court adopts the factual findings and guideline applications in the presentence report.’ ” Tackett, 113 F.3d at 614 (second alteration in original). This court concluded that “this is a far cry from the making of a finding for each matter controverted, as the plain language of Rule 32 requires,” and remanded for resentencing. Id.; see also United States v. Monus, 128 F.3d 376, 396 (6th Cir.1997) (“The law in this circuit clearly prohibits a court faced with a dispute over sentencing factors from adopting the factual findings of the pre-sentence report without making factual determinations of its own.”); United States v. Mandell, 905 F.2d 970, 974 (6th Cir.1990) (holding that a district court’s sentence that simply adopted the findings of the presentence report as to controverted factual matters violated Rule 32).

We therefore conclude that Corrado and Tocco must be resentenced in compliance with the requirements of Rule 32. Without a record of the district court’s findings, we are unable to conduct a meaningful review of its determinations as to the base offense level and -specific enhancements that it imposed upon the defendants.

Id. at 540-41.

In United States v. Osborne, 291 F.3d 908, 912 (6th Cir.2002), Judge Boggs himself authored an opinion reaffirming the “literal compliance” doctrine, stating,

the presentence report held Osborne responsible for distributing approximately 24 grams of methamphetamine. Osborne challenged this finding before the district court.... The district judge did nothing more than state summarily that he was accepting the sentencing range as set forth in the presentence report. Because this is clearly insufficient to comply with Rule 32(c)(1), we must vacate James Carl Osborne’s sentence and remand his casé to the district court for re-sentencing.

See also id. at 911 (explaining that “literal compliance” is required) (citing Corrado and Tackett). Inexplicably, in his majority opinion in the present case, Judge Boggs has now departed from the binding precedent that was established by his own Osborne opinion and the Corrado and Tackett cases that he cited in Osborne .

Of course, Judge Boggs’ opinion does not expressly admit that it violates the “literal compliance” doctrine; rather, the opinion attempts to rely upon “harmless” error analysis. According to the majority opinion, the Rule 32 violation was “harmless” because the two 1981 convictions could not possibly have been consolidated for sentencing, and because the 1986 conviction would be a second conviction, even if the two 1981 convictions were consolidat *414 ed. Yet the majority’s argument is not relevant to the applicable legal standard. The “harmless” error exception to the “literal compliance” doctrine applies only where the controverted matter is immaterial — i.e., where the sentence would have been identical, even if the controverted matter had been decided to the contrary. As stated in United States v. Darwich, 337 F.3d 645, 666 (6th Cir.2003), regarding the replacement of Rule 32(c) with Rule 32(i)(3)(B):

This new rule attempts to eliminate confusion over whether courts were required to make rulings on every objection to the PSR or only those that have the potential to affect the sentence. Fed.R.Crim.P. 32(i)(3) advisory committee’s note (2002). The new rule makes clear that controverted matters at sentencing only require a ruling if the disputed matter will affect the eventual sentence.

In the present case, there is no question that the disputed issue (of whether the prior convictions were related) would affect the sentence. Two prior unrelated felony convictions were needed to establish the offense level under which Defendant was sentenced. See U.S.S.G. § 2K2.1(a)(2) (the offense level is “24, if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.”); id. § 4A1.2(a)(2) (“Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for purposes of § 4A1.1(a), (b), and (c) ....”); id. § 4B 1.2(c)(2) (“The term ‘two prior felony convictions’ means ... the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of § 4A1.1(a), (b), or (e).”); United States v. Charles, 209 F.3d 1088, 1090 (8th Cir.2000) (calculating offense level, under § 2K2.1(a), by applying the definition of a single felony offense from § 4B1.2(c)). The controverted matter was not immaterial; thus, the district court was required to rule on the matter.

The district court’s failure to rule on the objection makes the present case indistinguishable from Darwich , in which the Court recited the “harmless” error standard, 337 F.3d at 666 , but concluded that the error was not “harmless” and remanded, for a ruling on the disputed matter. Id. at 667 . In Darwich , the district court had failed to specify whether an enhancement under U.S.S.G. § 3B1.1(a) was for a leadership role in criminal activity or, alternatively, was for otherwise extensive involvement in criminal activity. 337 F.3d at 666 (“U.S.S.G. § 3B1.1(a) provides that a defendant’s sentence can be enhanced by four levels ‘if the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive.’ ”); id. at 667 (“the district court did not issue a ruling on the disputed matter of whether Darwieh’s illegal drug activity was extensive or involved more than five individuals”). The district court’s failure to specify which of the two explanations had justified the enhancement meant that the district court’s decision was ambiguous and unclear.

In the present case, the district court’s decision was similarly ambiguous and unclear. Defendant disputed the finding that there had been two prior unrelated convictions; Defendant argued that two prior (state court) felony convictions for offenses committed on January 7, 1981 and January 18, 1981 were consolidated for sentencing and were thus related, under U.S.S.G. § 4A1.2, Application Note 3(C). The Probation Department presented three independent, alternative grounds denying the objection, arguing that (1) the January *415 1981 offenses were unrelated (under U.S.S.G. § 4A1.2, Application Note 3), because there was an intervening arrest; (2) there was no formal consolidation order and thus the two January 1981 offenses did not meet the criterion for consolidation in sentencing (and the offenses did not otherwise meet the criteria for relatedness under U.S.S.G. § 4A1.2, Application Note 3); and (3) the issue was moot, because a base offense level of 24 would have applied, even if the prior offenses had been related. In denying Defendant’s objection, without explanation, the district court never stated which of the three independent arguments it was relying upon; compliance with Rule 32 avoids the type of confusion that has resulted in the present case, where it is impossible to ascertain which argument(s) the district court relied upon. The district court’s failure to specify which of the alternative grounds it was relying upon was identical to the situation in Dar-wich, where the error was not “harmless.”

To further illustrate how the majority has misconstrued “harmless” error analysis, the present case can be contrasted with a case in which a Rule 32 infraction was properly deemed “harmless.” In United States v. Parrott, 148 F.3d 629 (6th Cir.1998), the defendant “contended generally that there was no evidence to support the § 2T1.3(b)(1) enhancement,” because there was no evidence that an offense occurred, or was charged, as the enhancement required. Id. at 633. The district court disposed of this matter by making a clear legal conclusion that was supported with a factual finding: “[t]he court asserted that the government had proved by a preponderance of the evidence that Par-rott’s conduct violated Tennessee’s statute for theft of property.” Id. However, this Court determined that there was a violation of Rule 32, because the district court “did not make independent findings with respect to the elements of the offense.” Id. Yet this Court made clear that the district court had not committed a blanket, wholesale violation of Rule 32 but, rather, only a partial infraction. Id. (“the District Court did not fully comply with Rule 32(c)(1)”) (emphasis added). The partial error was immaterial, because the defendant had admitted, at a plea hearing, to having a prior offense that would support the enhancement. Id. at 634 (“Parrott’s plea of guilty to filing a false tax return for the year 1990 ... constitutes an admission .... In sum, although the District Court technically erred by adopting the challenged paragraph of the presentence report in support of the § 2T1.3(b)(l) enhancement, the error was harmless, in light of Parrott’s own admissions at the plea hearing.”).

In Parrott , this Court simply examined the factual record, to determine if the district court’s clear legal conclusion was supported. There was no suggestion that the appeals court would have been free to substitute its own legal conclusion if the district court had completely disregarded Rule 32, by not issuing any legal conclusion whatsoever, on a disputed matter. Parrott in no way contradicted Darwich’s holding that where the district court summarily adopts the presentence report’s conclusion on a disputed matter, a remand is required under Rule 32. Thus; it is beyond question that the law of this Circuit, as established by the cases set forth above, requires a remand in the present case, because the district court summarily adopted the presentence report on the disputed issue of prior related offenses.

The majority has attempted to rationalize its violation of the law of this Circuit as an attempt to avoid “a waste of judicial resources.” Even if the majority’s decision truly were the most efficient course of action, nonetheless, it goes without saying that this Court is not free to violate binding case law in the name of efficiency. This panel is not free to abandon the “lit *416 eral compliance” doctrine that this Court has previously adopted. Turker v. Ohio Dep’t of Rehab. & Corrs., 157 F.3d 453, 457 (6th Cir.1998) (“a panel of this Court cannot overrule the decision of another panel.”) (citations and internal quotation marks omitted).

In addition, even if the majority were not violating binding law on this issue, the efficiency argument would be unpersuasive. In Buford, the Supreme Court explained that a district court’s experience and expertise in sentencing issues place the district court in the best position to make the determination of whether there was consolidation for sentencing. 532 U.S. at 64, 121 S.Ct. 1276 (“the district court is in a better position than the appellate court to decide whether a particular set of individual circumstances demonstrates ‘functional consolidation.’ That is so because a district judge sees many more ‘consolidations’ than does an appellate judge.”); id. at 66, 121 S.Ct. 1276 (citing “the comparatively greater expertise of the District Court” in matters of consolidation for sentencing). Undoubtedly, the district court’s greater experience and expertise in sentencing allow the district court to rule on issues such as consolidation with far greater efficiency than this Court can in adjudicating such issues. The true “waste of judicial resources” occurs when this Court attempts to speculate in areas that lie squarely within the district court’s expertise, instead of simply remanding for an initial ruling by the district court. The most efficient course of action would have been to remand — not coincidentally, that is the outcome that is required by Rule 32 and the “literal compliance” doctrine.

For the aforementioned reasons, I respectfully dissent.

. None of the other objections are renewed on appeal. Thus, the case should be remanded but only for a ruling on the issue presented before this Court — the question of whether there were two prior related felony convictions.

. This provision from the former Rule 32(c)(1) is now found in Rule 32(i)(3). See, e.g., United States v. Montgomery, 79 Fed.Appx. 401 , 403 n. 1 (10th Cir. Oct. 27, 2003) ("Montgomery appeals, arguing that the trial judge should have disqualified himself, erred by departing upward, and erred by failing to comply with Federal Rule of Criminal Procedure 32(f)(3).... Formerly this provision was contained in Fed.R.Crim.P. 32(c).”).