419 F. App'x 649
6th Cir.2011Background
- Defendant Burleson confronted two bank tellers with a loaded handgun during an attempted armed bank robbery in Gadsden, Tennessee.
- She pled guilty in the Western District of Tennessee to attempted armed bank robbery and brandishing a firearm during a crime of violence.
- District court sentenced Burleson to 110 months’ imprisonment, 5 years of supervised release, and a $200 special assessment.
- Burleson appealed challenging whether the sentencing court violated Rule 32(i)(1)(A) by not verifying she had an opportunity to review the PSR with counsel.
- Because no objection was raised at sentencing, the court reviews for plain error.
- The court held that Burleson failed to show the error affected substantial rights or the fairness of proceedings, and affirmed the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court violated Rule 32(i)(1)(A). | Burleson argues the court failed to verify review of the PSR with counsel. | Burleson contends the error was plain and preserved rights to review the PSR. | No plain error; no reversible error found. |
| Whether any Rule 32(i)(1)(A) violation affected Burleson's substantial rights. | Failure to confirm review prejudiced her sentencing participation. | Record shows discussion of PSR facts and guideline calculations; no demonstrated prejudice. | Burleson failed to show prejudice; sentence affirmed. |
Key Cases Cited
- United States v. Tate, 516 F.3d 459 (6th Cir. 2008) (plain-error review when no objection to Rule 32(i)(1)(A) violation)
- United States v. Mitchell, 243 F.3d 953 (6th Cir. 2001) (mandates literal compliance with Rule 32(c)(3)(A))
- United States v. Bostic, 371 F.3d 865 (6th Cir. 2004) (plain-error standard for non-obvious Rule 32(i) violations)
- United States v. Osborne, 291 F.3d 908 (6th Cir. 2002) (opportunity to read and discuss PSR can be shown indirectly)
- United States v. Jeross, 521 F.3d 562 (6th Cir. 2008) (record may show opportunity to review PSR when objections discussed)
- Stevens, 851 F.2d 140 (6th Cir. 1988) (due process right to be sentenced on accurate information)
- Olano, 507 U.S. 725 (1993) (definition of substantial rights and harmlessness standard)
- Puckett v. United States, 129 S. Ct. 1423 (2009) (structural errors not assumed; plain-error framework requires prejudice)