United States v. Santiago
466 F.3d 801
9th Cir.
2006
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UNITED STATES of America, Plaintiff-Appellee, v. Jesus Antonio SANTIAGO, Defendant-Appellant.

No. 05-30584.

United States Court of Appeals, Ninth Circuit.

October 23, 2006.

466 F.3d 801

Argued and Submitted Sept. 15, 2006.

ordinance regulates protected speech based on its content but is not the least restrictive means of furthering a compelling government interest. It therefore is an impermissible restriction on First Amendment activity. We also hold that the City‘s tabling ordinance is unconstitutional as applied to Plaintiffs, to the extent that it regulates the use of tables to facilitate the dissemination of protected speech. The ordinance contains an exception for labor-related tabling in violation of the Equal Protection Clause of the Fourteenth Amendment. We remand to the district court with instructions to issue the appropriate injunctions.

In appeal No. 05-15667, we REVERSE the judgment of the district court. In appeal No. 05-15767, we AFFIRM the judgment of the district court. REMANDED.

Greg J. Fuller, Fuller Law Offices, Twin Falls, ID, for defendant-appellant Jesus Antonio Santiago.

Michelle R. Mallard and Alan Burrow (argued), Assistant United States Attorneys, Pocatello, ID, for plaintiff-appellee United States of America.

Before BARRY G. SILVERMAN and RONALD M. GOULD, Circuit Judges, and JOHN S. RHOADES, SR.,* District Judge.

* Senior United States District Judge for the Southern District of California, sitting by designation.

OPINION

GOULD, Circuit Judge.

We consider whether the plain error standard of review applies when the district court expressed “concern” about how a Presentence Report (“PSR“) calculated the quantity of drugs attributable to the defendant, but the defendant did not object to any part of the PSR. We hold that in such a case the plain error standard of review applies. Concluding here that there was no plain error, we affirm the defendant‘s sentence.

On August 4, 2005, Jesus Antonio Santiago pled guilty to one count of conspiracy to distribute methamphetamine. Because the approximately three kilograms of methamphetamine seized or purchased by government agents from Santiago and his co-conspirators did not reflect the full scale of Santiago‘s offense, the PSR, pursuant to the Federal Sentencing Guidelines, estimated the quantity of methamphetamine attributable to Santiago. See U.S.S.G. § 2D1.1 cmt. n. 12 (2005). The PSR calculated this as being between 17 and 104.3 kilograms.1 The PSR based its estimate on interviews with persons who purchased methamphetamine from and used methamphetamine with Santiago. Persons interviewed said that Santiago delivered between one and five pounds of methamphetamine per week over an eighteen to twenty-three month period. Santiago did not file written objections to any facts recited in the PSR.

At Santiago‘s sentencing hearing on November 1, 2005, the district court explicitly expressed serious doubts as to the accuracy of the drug-quantity estimates in the PSR.2 The district court also acknowledged that “I have some concern about how the total amount of drugs was arrived at. Nevertheless, I‘m convinced that there‘s a sizable amount.” Notwithstanding the district court‘s observations, Santiago did not object to the drug-quantity calculations at the sentencing hearing. The district court then sentenced Santiago to 300 months imprisonment with ten years supervised release. On appeal, Santiago argues that the district court did not properly calculate the drug quantity attributable to him, and that this was reversible error.

When a party does not lodge a specific objection in the district court, yet asserts error on appeal, we review under our familiar plain error standard:

Before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

(internal quotation omitted). Because Santiago did not object to the drug-quantity calculations in the PSR before sentencing or at the sentencing hearing, the government argues that we may review only for plain error. Santiago urges that because the district court expressed concerns about the PSR‘s quantity calculations, no objection by counsel was necessary, and that we are not limited to plain error review.3 We reject Santiago‘s argument and conclude that absent specific objection by the defendant, the plain error standard controls even when the district court expresses concern about a PSR.

“A specific objection provides the district court with an opportunity to address the error in the first instance and allows this court to engage in more meaningful review.”

; see
(“[R]esolving a defendant‘s factual objections to the PSR on the record ensures meaningful appellate review of the sentence.“). Though the district court may have had concerns about the PSR, when counsel for Santiago did not object, the district court was entitled to conclude, without further analysis, that its concerns were unjustified. See Fed. R. Crim. P. 32(i)(3)(A) (“At sentencing, the court may accept any undisputed portion of the presentence report as a finding of fact....“).

Other circuits addressing similar issues have reached the same conclusion. See

(reviewing a sentence for plain error when the defendant filed a downward-departure motion before the sentencing hearing, the district court asked for the opinion of government counsel, and the government failed to object);
(applying the plain error standard of review when the district court asked for objections to the PSR‘s drug-quantity attribution and the defendant provided none).

We thus hold that our review is limited to review for plain error when counsel has not objected to any part of the PSR, whether or not the district court has expressed concerns, doubts, or qualifications regarding the PSR‘s drug-quantity calculation. In an adversarial system, it is counsel‘s duty to object to any part of a PSR that a party asserts to be erroneous.4

Santiago nevertheless argues that the district court plainly “erred in failing to set forth ... the factual basis for determining Santiago‘s individual conduct and responsibility relative to other co-conspirators.” However, when a defendant fails to object to the facts set forth in the PSR, the district court is not required to make any factual findings. See

(“Charlesworth did not contest any of the information in the PSR; therefore, there was no need for the court to make any findings.“); see also
(“Of course, the district court may rely on undisputed statements in the PSR at sentencing.“). Stated another way, by indicating concern, the district court was at most inviting an objection; when no objection was made, the district court had no disputed fact to resolve.

Here, the PSR calculated the drug quantity individually attributable to Santiago5 and Santiago did not dispute it. Because, absent objection, the district court did not err in relying on the PSR, and because the PSR calculated the drug quantity individually attributable to Santiago, there was no plain error.6

AFFIRMED.

Notes

1
An attributable quantity of fifteen kilograms or more of methamphetamine results in the highest base offense level possible under the Sentencing Guidelines. See U.S.S.G. § 2D1.1(c)(1).
2
The district court stated: While clearly we often have to make estimates about the amount of drugs involved, the estimates here are just beyond, I think, reasonableness, just accepting what various individuals[who] have been involved have indicated, much of which, I would think, would be an opportunity for these individuals to try to whitewash their own involvement.
3
If not limited to plain error review, then we review the district court‘s factual determination for clear error.
.
4
Our conclusion is reinforced by the guidance of a respected procedural treatise, which states that the rule requiring an objection to avoid review for only plain error “is essential to the orderly administration of civil justice” because it alerts the trial court to possible errors and allows the opportunity to correct them in the first instance, saving the parties and the public the expense of an appeal. 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2472 (2d ed. 1995).
5
The PSR estimated that Santiago delivered between 17 and 104.3 kilograms of methamphetamine and concluded, “[Santiago] is responsible for delivering in excess of 15 kilograms of methamphetamine.”
6
Santiago relies on the memorandum opinion of the District Court for the District of Columbia in
, for the proposition that the district court may not merely adopt drug quantity calculations in a PSR, but rather must explicitly determine the amount of drugs for which the defendant is responsible. Haynes in turn relied upon the decision of the D.C. Circuit in
. Saro stated that the failure to explicitly determine the amount of drugs for which the defendant is responsible, standing alone, is not plain error.
(“Without more, this lack of explicitness would not constitute plain error....“). Santiago‘s unduly broad reading of D.C. Circuit law is thus unpersuasive.