*1 America, STATES UNITED
Plaintiff-Appellee, TATE, Defendant-Appellant. Lando V.
No. 06-6529. Appeals, United States Court Sixth Circuit. 5, 2007. Argued: Dec. and Filed: Feb. 2008. Decided *3 Stengel, Stengel Michael J.
ARGUED: Office, Tennessee, for Memphis, Ap- Law Jr., pellant. Greg Gilluly, E. Assistant Attorney, Memphis, Tennes- United States see, Appellee. BRIEF: Michael for ON Office, Stengel, Stengel Memphis, Law J. Tennessee, Gilluly, Appellant. Greg for E. Jr., Attorney, Assistant United Tennessee, Appellee. Memphis, GUY, MOORE, GILMAN, Before: Judges. Circuit GILMAN, J., opinion of delivered GUY, J., court, joined. in which MOORE, 472-73), delivered a (pp. J. dissenting opinion. separate
OPINION GILMAN, LEE Circuit
RONALD Judge. Lando V. August of by jury being on one count
convicted of a firearm. The possession a felon was calculat- Sentencing range Guidelines imprison- 84 to 105 months ed be ment, moved for an but the the basis that Tate’s upward departure on to accu- history category failed criminal prior the seriousness of rately reflect argued further criminal conduct. It 3553(a) fac- upon the 18 U.S.C. based tors, maximum of 120 statutory imprisonment ap- Meanwhile, months’ was the more despite being represented counsel, At propriate punishment. Tate submitted a pro series of filings se hearing, April the district court declined im- the court between October of 2006. pose filings, These and Tate’s departure under court, statements Guidelines, were impose statutory but did couched in language and concepts maximum impris- sentence of 120 months’ found in the Uniform Commercial Code onment based on the factors. (UCC). Irby filed a psycho- motion for a appeals now his sentence. For the logical examination in June ex- below, reasons set forth we AFFIRM the plaining that Tate had saying been judgment of the district court.
“strange things” Irby to and to the district Irby court and that did not know how or I. BACKGROUND why Tate making was pro UCC-based filings. motion, se In that Irby further A. Tate’s conviction stated that “searching he was to find out Tate, in August was indicted how to help” Irby 2005 on and that “need[ed] one count of a being possession felon in to have [Tate] evaluated to know his men- firearm, a in tal violation of But that status[.]” 18 U.S.C. motion was with- § 922(g). Pursuant drawn less than a plea agreement, to week later without ex- pled guilty planation. charge to the in October of 2005. originally represented He was time, during Also this after Tate’s initial defender, an assistant federal but after sentencing trial, hearing but before his Tate filed a motion for new counsel and Irby filed a motion to withdraw as Tate’s the federal defender informed the district Irby reported counsel. that Tate had re- court that Tate uncooperative had been fused to accept his advice he was him, and refused to meet with “unable to effectively deliver legal ser- appointed attorney Irby repre- Robert vices” to Tate attorney-client because their (PSR) sent A Tate. Report Presentence exist[ed], relationship longer “no or else prepared, parties after which both never existed.” After conducting a hear- filed sentencing memoranda. The sen- ing on the listening motion and Irby tencing hearing was set for January of discuss Tate’s cooperate, refusal 2006, but based on repeated Tate’s re- Irby’s court denied motion to with- quests for more time prepare, the dis- draw. trict court hearing continued the several B. Tate’s
times. 1. reports Presentence When the sentencing hearing finally place took in May of Tate stated that probation initially office prepared a guilty wished to withdraw plea. PSR December pled of 2005 after Tate The district permitted guilty Tate with- felon-in-possession-of-a-fire- to the plea draw his and then set the trial charge. date arm Tate’s criminal cate- for June of 2006. At request, gory VI, was calculated to be based on 36 district later reset the trial date. history points. criminal assigned He was finally Tate’s case proceeded to trial a base offense level of 20 because he had a August and, of 2006 two-day after a prior felony hear- conviction that qualified under ing, the jury charge convicted him on the the Sentencing Guidelines aas crime of in the indictment. violence. points Two were added because Sentencing hearing 2. points Three were was stolen. the firearm accepted Tate had because then subtracted sentencing hearing place took meant the ad- which responsibility, September of 2006. The 19. offense level was justed total Irby asked whether and Tate had received they had copies of the PSR whether the Guidelines calculated The PSR Irby explained it. that he had discussed imprisonment. 78 months’ range at 63 to copy, although Tate a Tate claimed Guidelines-range calcula- In addition opportunity that he had not had an tion, possible the PSR discussed made a review the document. The court “if § 4A1.3 reliable under USSG opportunity finding that Tate had had criminal his- that the information indicates PSR, apparently re- to review adequately reflect tory does not category prepared a month fers to the revised PSR past of the defendant’s the seriousness hearing. Irby also noted before also noted The PSR conduct.” [original he and Tate had “discussed 5 were history points, criminal Tate’s 36 ago” ... months and that length at PSR] the maximum under noncountable because Sentencing Guide- they had “discussed (c) a maximum of four (providing § 4A1.1 *5 lines[,] to his they apply ... how would by captured points prior sentences case, Af- possibilities sentencing.” at (a)-(b)) §§ 4A1.1 had been reached. object being given opportunity ter an and the calculations the facts Guidelines in Au- trial and conviction After Tate’s PSR, parties in the revised both contained PSR was revised. gust original of objections. they said that had no between only substantive difference The attorneys then The district court and original and the PSR the revised PSR regarding engaged lengthy in a discussion trial, that, gone Tate had because history govern- and the Tate’s criminal three-point version removed revised departure motion for an ment’s acceptance responsibility. of reduction for § 4A1.3. Tate was also under USSG offense level was therefore His final He to address the court. opportunity an 22, causing the Guidelines changed to lan- employing statement lengthy made a increase to between 84 and 105 range to law, and sounding in commercial guage The imprisonment. section months of that, documents presented with possible upward with a dealing Irby’s understanding, were according to same, as did § 4A1.3 remained the under Irby govern- and the put intended to both history criminal recitation of Tate’s bankrupt- involuntary into ment’s counsel and offender characteristics. cy- PSR, response In to the revised government’s argument, During the sentencing memoran- government filed a request its that the renewed upward departure requested dum that the Guidelines upward from depart either 4A1.3, “has § that Tate emphasizing under statutory Tate to the range or sentence necessary 3553(a) points times the § almost three based on maximum sentence History highest him in the Criminal place government specifically factors. request- government also of- Category.” charged nature of the pointed Tate to the district court sentence criminal ed that fense and to Tate’s im- that Tate’s sen- argument of 120 months’ its statutory support maximum of addition, be enhanced. on the factors set forth tence should prisonment based that “the defen- 3553(a). noted § in 18 U.S.C. prior attempts dant’s at ... rehabilitation court determined that the Guidelines argued have failed.” It for those range did not adequately satisfy this need reasons combined with the other 3553(a). factors § or the other factors under It 3553(a), § under Tate “should be sen- imposed therefore statutory maximum tenced to 120 months.” sentence of 120 months’ imprisonment fol- three-year lowed a term supervised noting
After that the only- Guidelines are release. 3553(a), § one factor to consider under district court denied the motion for an imposing sentence, After
upward departure under 4A1.3. The parties court asked if there were court explained: objections yet attorneys made. The going deny
I’m it because I think I’ll answered in the negative, but Tate stated: have a more adjustor, accurate fair “I would like the accept record to reflect I result, more reasonable Iif consider all your judgment offer of for 120 months. I together these factors rather than still request full settlement and closure of trying to history. isolate the criminal I this account.” responding After to Tate’s it, think way that’s better to do be- request for a copy of the judgment, ultimately cause I have to have a sen- adjourned hearing.
tence that requirements satisfies the 3553.
[§ ]
II. ANALYSIS
At that point, the district
engaged
in A. Standard of review
a detailed
applied
discussion that
typically
We
review the district
factors to Tate’s case.
It fo-
court’s factual findings
clearly
under the
particularity,
cused with
although not ex-
*6
erroneous standard and its conclusions of
clusively, on
history.
Tate’s criminal
The
Hazelwood,
law de novo. United States v.
court noted that “the uncontested factual
792,
(6th Cir.2005).
398 F.3d
795
narrative” of
demonstrated
overall sentencing determination is re
pattern
“a
violence,
that
physical
includes
viewed for reasonableness. United States
arrest,
attempt to avoid
situations that risk
Thomas,
(6th
v.
336,
498 F.3d
Cir.
individuals,
the lives of
...
general
a
[and]
2007). When, however, party
is
lack
respect
for the law.”
opportunity
object
to a sentence in the
Moreover, the court found that Tate had
district court and
not clearly
“does
articu
exhibited “a continuing desire to avoid the
any objection
late
grounds upon
the
consequences of his conduct. Mr. Tate is
objection
which
based,”
the
is
we review
educated, he
intelligent, mentally
objections
the
raised
appeal
under the
aware.”
In discussing what
plain-error
standard. United States v.
termed “a piece
conduct,
of the prior
con-
Bostic,
865,
(6th
Cir.2004);
F.3d
872-73
tempt
law,
contempt
[and]
for law en-
52(b).
see also Fed.R.Crim.P.
forcement,”
that,
it
by
concluded
making
UCC-based arguments, Tate had
case,
“chosen
In
present
the
pro
after
a course that is obstructionist and
sentence,
used
nouncing the
the district court
bad faith.” The court
further
stated:
asked Tate’s
you
counsel: “[D]o
know of
“Nothing ...
reason,
indicates that Mr.
any
Tate is
other than any
you
reason
going to do anything but as soon as he is
already argued
have
why the sentence
released, go out and
again.”
offend
Not-
should
imposed
not be
as stated?” This
ing that “what
my
drives this case in
judg-
satisfied the district
obligation
un
ment
protect
is the need to
public,”
the
Bostic,
the
der Bostic. See
We need not record makes clear that Tate had refused whether the district actually failed to cooperate further Irby. with For these 32(i)(1)(A) comply because, with Rule even reasons, we conclude deviation if error, there was an obvious it did not 32(i)(l)(A) from Rule part on the of the affect Tate’s rights substantial or affect district court did plain not constitute error. fairness, integrity, public reputation or Gardiner, of the proceedings. See *8 Objection 32(h) C. under Rule F.3d at 459. attorney Tate’s own noted that he and Tate had original discussed the Tate also claims that the district court “at length,” they 32(h) PSR and that had “dis violated Rule of the Federal Rules of Sentencing cussed the Guidelines and how Criminal Procedure imposing an above- they case, would apply to possibili and his Guidelines sentence “without furnishing at sentencing.” ties The defense even notice” to him. He did not any raise ob- filed a sentencing jection 32(h) memorandum address on the basis of Rule during ing original PSR. govern And as the outset, sentencing. At the we note that out, ment correctly points Supreme differ recently granted Court has ence between the original and PSR certiorari question on the of whether Rule 32(h) revised PSR was that the revised version “has continuing application in
467 Cir.2001) (“[W]hen decision of this a later Booker, U.S. v. 543 States light of United prior pub- our with one of 738, 621 court conflicts 160 L.Ed.2d 220, 125 S.Ct. decisions, by the Presented, we are still bound Irizarry (2005).” lished Question See case.”). States, 06-7517, at For these available the earlier holding of No. v. United reasons, review apply plain-error will we http://www.supremecourtus.gov/qp/06- Nevertheless, consider we will that the district argument 07517.pdf. 32(h). 32(h) on the objection based Rule Rule violated point. up to this developed it has law as 32(h) provides Rule disagree a that there is recognize We [bjefore may depart from the the court plain harmless or as to “whether ment range ground on a applicable party when the appropriate review is error in the either not identified 32(h) appeal notice on challenging Rule party’s pre- or in a report presentence court.” in the district object does submission, give court must hearing 633, F.3d Matheny, 450 v. States notice that is reasonable parties Cir.2006) (6th novo (applying de n. 2 637 departure. a such contemplating no Rule review, that there was concluding any ground on which specify must notice re 32(h) error, declining to therefore and departure. a contemplating is v. United States conflict between solve the 32(h) “ap This court has held that Cir.2005) (6th Meeker, 736, 744 411 F.3d departures] equally [Guidelines plies a Rule review to plain-error (applying United States variances.” 32(h) v. violation), States and United (6th 572, Cousins, Cir. F.3d v. (6th Cir. Williams, Fed.Appx. 2006). Nevertheless, re is “[a]ll 2004) a Rule de novo (applying notice; what consti quired is reasonable violation)). 32(h) vary depend notice will tutes reasonable however, is more of disagreement, This the particular on the circumstances ing one than an actual perceived a conflict Ragland, 226 Fed. v. case.” United States unpublished case is an because Williams (6th Cir.2007) (citing Meek 507, 510 Appx. panels. on future binding and thus 736). par are er, “If issues 411 F.3d Cmty. v. rel. Bledsoe ex States See United ground for or the ticularly complicated (6th Inc., 493, 507 501 F.3d Sys., Health not rea that was departure is one moreover, analysis, Williams’s defendant, contemplated by the sonably decid- fact that it was by is diminished contrast, necessary. time is then more Bostic. articulated in the rule ed before exists evidence otherwise if cumulative Bostic, 371 F.3d See United already record, the defendant then Cir.2004) party (requiring 872-73 nec time is preparation less on notice “clearly articulate sentencing hearing (cita Meeker, at 744 essary.” upon grounds any objection and omitted). tions avoid in order to is based” objection appeal”). error review “plain although Tate contends that en might be had notice that Moreover, Math to the extent that 4A1.3, the dis under U.S.S.G. by ap hanced with Meeker eny creates a conflict *9 him 32(h) failing give to by erred trict court to a Rule de novo plying “consider might notice proper in the dis not raised challenge was advisory applicable outside the be sentence court, by Meeker we are bound trict He has any other reason.” range for Darrah v. first. See it was cause decided however, (6th us, 301, persuaded Park, 310 255 F.3d City Oak 468
court plainly erred in
regard.
this
As a
to impose
UCC]
a sentence exceeding the
preliminary matter,
has
Tate
not shown advisory guideline range,” the court erred
actually
provide
failed to
by failing
give
to
notice of its intent
required
reasonable notice
by
as
Rule
enhance his sentence for this reason. Tate
32(h).
thus contends that if he had been aware
that the district court was going
rely
Tate contends that he did not receive
his
arguments
UCC
punish him,
notice that the district
might depart
would
proceeded
have
differently by en-
from the
government
Guidelines. But the
suring that the
Irby
mental evaluation
re-
submitted a
prior
memorandum
quested in June of 2006
actually
was
com-
hearing
the
in
requested
which it
“that
pleted.
the court sentence the defendant
to 120
months because a 120-month sentence is
But we
persuaded
are not
that Tate’s
sentence,
the appropriate
one that is suffi-
arguments
UCC
played any significant
cient, but not greater than necessary, to
imposition
role
the
of his sentence. The
comply with
purposes
set forth in 18
court,
district
§
evaluating the
3553(a).”
present
U.S.C.
case is
factors, discussed a wide
range
consid-
Cousins,
distinguishable
therefore
from
in erations, of which Mr. Tate’s “obstruction-
which “the
imposed
a two-
ist” behavior
only
received
minor mention.
upward
month
from
variance
the Guide-
fact,
In
most of the
analysis
cen-
range,
lines
despite
fact
that neither
tered on Tate’s
history,
extensive criminal
government
nor
PSR had
recom-
all of which was
detailed
both PSRs. See
mended such a variance.”
Moreover, the defen- government points to nu- argument dant’s that the PSR merous was inade- instances in record reflecting quate in failing explain various proceedings at rationale for which Tate was in- departure where formed that statutory upon facts maximum was months and that based were de- the district court therein). scribed impose could assertion that outside the Guide- range. line court erred Quinlan, failing See give United States v. him Cir.2007) (summari- notice that it would enhance his sentence ly because of dismissing Quinlan’s argument arguments based on UCC therefore 32(h) Rule because mischaracterizes record, had but repeatedly “put Quinlan also the and the extensive reasoning court on that the court provided notice that it was recommending enhancing a sen- his sentence under months”). 3553(a). tence generalized argument that he did not have notice of any event, In even if we were to the possibility might that he receive the conclude that the district court violated statutory maximum sentence is therefore 32(h), Rule Tate has not shown that this
without merit. would entitle him to relief plain- under the alternative, Cousins, directs error standard. See 469 F.3d at our 32(h) attention to the language in Rule 580 (explaining that the failure to provide requiring “specify any notice 32(h) notice under constituted an ob ground on which the contemplat court is error, vious but required nevertheless ing a departure.” argues He that because defendant to establish the error had “an the district court on [the “relied fact that effect on his rights, substantial and a seri had arguments made based upon the impact fairness, ous integrity, or
469 is un- sentence above-Guidelines that the proceed- judicial of reputation public omitted)). the fact that emphasizes reasonable. marks (internal quotation ing” most severe imposed “the history provided court district criminal extensive Tate’s under bulk of his but the upward departure possible,” for an ‘variance’ the basis “was fact that he on the again 4A1.3, Tate concedes once centers argument § successfully rebuff Tate’s object and mentioned to court prepared that district upward for an request of discuss- government’s in the course arguments UCC Tate’s Thus grounds. these 3553(a) on to departure” According factors. § ing the rebutted “may have contention clear- record Tate, of the entire review “[a] had had if he for a variance” basis factual frustra- court’s the district ly reveals that meet the insufficient is notice additional Tate, the rec- on expressed Mr. tion with 226 Ragland, See standard. plain-error jerk trial, a knee caused before months ord prejudice no (finding Fed.Appx. at reaction.” suggest “failed the defendant where differently proceeded have he would for how reviews sentences court This notice”); Meek- greater been given had he reason substantive procedural both prejudice no (finding er, at 746 411 F.3d Thomas, 498 v. States United ableness. an supporting “the evidence where Cir.2007). (6th from 336, Aside F.3d irrebuttable”). essentially was on Rule Tate raised based objections chal pro- above, have Tate does 32, he would discussed argument Tate’s likewise of the is evaluation reasonableness mental lenge procedural with a ceeded above, the because, discussed district court. by as unavailing imposed sentence “obstruc- to Tate’s referred limit our reasonableness We will therefore evalua- briefly in its behavior tionist” above-Guidelines to whether review 3553(a) was also He § factors. of the substantively tion rea 120-month sentence the district ample notice sonable. impose factors to use these might Thus the dis- for our sentence. touchstone above-Guidelines UCC- to Tate’s is reference of the sentence length court’s trict is whether prejudice did arguments § factors. based of the light reasonable sen- a lower for his case ability to make F.3d Cherry, 487 v. States See 3553(a). under tence will reviewing court (6th A substantively un is find that sentence moreover, persuade failed Tate, has court se “where reasonable impacted alleged error us arbitrarily, bas[es] the sentence of reputation lects] fairness, public integrity, or factors, fail[s] impermissible contrary, re- sentence To the proceedings. 3553(a) factors, or essentially punish pertinent to consider would this case manding weight amount attention thorough an unreasonable giv[es] for its and its PSR factor.” United in the any pertinent the facts discussed Cir.2006) the sentence explanation Ferguson, detailed (internal reject quotation (alteration therefore original) We impose. chose under omitted). to his challenge sentence marks 32(h). presumption this Although Reasonableness D. only to sentences applies of reasonableness is no there range, the Guidelines inside Tate in advanced argument final falls a sentence against presumption judgment district court’s challenging the *11 States v. range. outside of the United to Tate’s arguments UCC, under the Smith, 474 F.3d it only mentioned support in of its conclu- previously This court has applied a form of sion that had continuously refused to proportionality review to sentences outside accept responsibility actions, for his does the Guidelines so that range, greater “the not undermine our conclusion that the the variance from the range, the more 3553(a) court carefully weighed § the fac- compelling justification the for variance tors in determining an appropriate sen- be.” Id. The must Supreme Court, howev- tence. er, recently held that “while the extent of We believe this court’s decision in the difference particular between a sen- Smith, is instructive. The tence and the recommended Guidelines Smith, district court in unlike the district range relevant, surely is courts appeals of case, court in present the chose impose must review all inside, sentences —whether an upward departure pursuant to USSG
just outside, or significantly outside the § 4A1.3 rather than a variance under range Guidelines a deferential —under 3553(a). § court, however, This explained abuse-of-discretion standard.” Gall v. that “our review of a district court’s up- — States, -, U.S. 128 S.Ct. ward to a higher offense level 586, 591, 169 (2007). L.Ed.2d 445 should analysis mirror our of its variance argues that his from guidelines sentence is the range. Since a district substantively unreasonable because court employ can “[t]he either and arrive at the district court simply selected maximum result, the same we should review both meth- sentence arbitrarily and base the [sic] sen ods with the same scrutiny.” Id. at 893. tence on Mr. Tate’s assertion a theory of Our court then concluded that the district the district court nonsense, considered court’s sentence substantively reason- balanced, rather than a analysis reasoned able because 3553(a).” § under The coun district court not explained the ters by pointing out contrary, reasons was departing it upward but it “[t]he court considered the arguments of provided also an analysis of parties. The court considered po 3553(a) § factors. It examined each of sition papers of parties. The court prior convictions on Smith’s record. considered statements the defendant. concluded, It review, based on this also court considered the [PSR].... Smith drug abuse, “has pos- considered, detail, § sessing dangerous firearms, and acts of
factors.” violence against It explained women.” that it
Our chose thorough sentence did review of the because Smith “has transcript shown disregard utter convinces us that govern- the law throughout position ment’s course the correct of his As with one. life.” recognized It his argument 32(h), under con- would Smith keep off the tention street reacted that alone was a jerk” “knee benefit to safety fashion to his UCC-based ar- community.... guments finds no support in the record.
The transcript demonstrates that the dis- We do require a rote recitation of trict engaged 3553(a) a thoughtful § factors but rather an explana- painstakingly detailed review of how the tion why the district court chose 3553(a) factors applied to Tate’s case. sentence it did. The court below exam- And the fact that the district court alluded ined of the many factors and *12 circum- all of these under reasonable unreasonable them a to
attached within stances. that it was conclude We weight. it the sentence impose to
its discretion when read particularly excerpt, The above did. district rest of the with the conjunction omitted). 3553(a) (citations § discussion of the Id. at 894 detailed court’s cir- history and and of Mr. factors the sen- surrounding The circumstances com- cumstances, the court’s demonstrates remarkably similar to are tencing in Smith of Tate’s criminal manding grasp case, present In the involving Tate. those paid it to attention the close and to declined specifically court district underly- 3553(a) policies and the § factors under an impose ing them. it could that it believed § 4A1.3 because by weighing result a fairer obtain moreover, note, Supreme that We 3553(a) explanation The court’s § factors. our reinforces ruling Gall recent Court’s supports balancing of these factors of its court did the district conclusion that manner. that proceed to
its decision from the unreasonably by varying act arbitrary an Indeed, imposing from far case, though even in Tate’s Guidelines unreasonable an placing or sentence sentence. statutory maximum imposed factor, the any one weight of amount appel- Gall, explained In the Court analysis careful undertook court district for sub- a sentence reviewing court late As the law. and the facts both the of reasonableness stantive explained: court district the devia- the extent of may consider That’s crime. a life of lived has] [Tate to due deference tion, give but must history, both the criminal teaching of decision court’s category, history and the the criminal whole, 3553(a) factors, justify aon recidivism, of good predictor are which fact that The variance. of the extent themselves, an- once one the crimes reasonably might court appellate in detail. them, I have done alyzes sentence that a diffei-ent have concluded justify is insufficient appropriate
was the Guide- a sentence above I do think court. the district of reversal case. necessary in this lines is — U.S. -, States, v. United Gall through they suggest Guidelines, what (2007). L.Ed.2d S.Ct. part one history are the criminal demonstrates discussion The above protect the need They suggest that. weighed appropriately the district the of- But the nature public. and determined factors all the conduct fense, pistol, loaded statutory maxi- deserving of the Tate was mat- significant case are through this us, before the record On mum sentence. capture don’t Guidelines] ... [The ters. the district question no find reason we opportu- every Tate has had that. Mr. there- regard, in this judgment abiding live a decent law nity to lead imposed the sentence fore conclude it, has been [sic], ability do every has reasonable. it, not to. [sic] but choose to do trained event, the need because III. CONCLUSION any other and balance public protect the above, forth set the reasons all of For stated, to sentence going I’m factors I’ve judgment of AFFIRM we It is a 120 months.... Mr. Tate fair, court. just, and that I believe MOORE, KAREN NELSON Circuit right. declared “[a]ll He has had the Judge, dissenting. opportunity to review it.” Id. The court then asked Tate’s they counsel if had dis- majority rejects Lando V. Tate’s cussed report, and counsel’s response (“Tate”) claim that the district court violat- referred to discussions ago.” “months Id. S2(i)(l)(A) ed Rule of the Federal Rules of *13 colloquy above clearly should have Criminal Procedure because the majority demonstrated to the district court subjects plain-error Tate’s claim to review proceeding with the sentencing hearing ground that Tate did not sufficient- 32(i)(l)(A)’s would violate Rule require- ly objection articulate his at sentencing. ment that the court “verify that the de- Maj. Op. at 465-66. Because I believe that fendant and the attorney defendant’s have appropriately raised this issue before read and discussed the presentence re- the district court and because our binding port.” Any discussions held “months case law requires “literal compliance” with ago” could possibly pertained have Rule 32’s provision, verification I would presentence the revised report, which had vacate Tate’s sentence and remand for re- been completed only a prior short time sentencing. Accordingly, I respectfully the hearing. Thus effectively counsel dissent. confirmed that he had not discussed the 32(i)(l)(A) Rule provides that at sentenc- report revised with his client. The defen- ing the court verify “must that the defen- dant himself twice stated he had not re- dant and the defendant’s attorney have viewed report. The court should have read and discussed the presentence report briefly adjourned hearing and any and addendum to report.” At the defendant and his counsel time to review start of Tate’s sentencing hearing, the fol- the report put beyond matter lowing exchange occurred: doubt.1 The apparent court’s “finding” The Court: you, Tate, about How Mr. “had the opportunity to review you have reviewed the Presentence it” satisfy does not the Rule’s command Report your case? that the “verify that the defendant No, The Defendant: sir. and the defendant’s attorney have read ” Well, The Court: you have had op- discussed report. Fed.R.Crim.P. portunity to review the 32(i Presentence )(1)(A) added). (emphasis Report your case? majority avoids confronting the dis- No, The Defendant: sir. trict 32(i)(l)(A) court’s Rule error by sub- (Sent. J.A. at 3). Hr’g Tr. at jecting 9/21/2006 Tate’s claim plain-error review, The court then asked Tate’s counsel stating that Tate did sufficiently artic- whether Tate been had furnished with a objection ulate his at sentencing. Maj. Op. copy of report. When Tate’s counsel at disagree. I 465-66. The district court said that Tate had received a copy, the asked questions Tate two about whether 1. The record tration, indicates that Tate has the district court in fact conducted an non-cooperation, but "frustration with a very thorough otherwise and commendable less-than-cooperative justi Nonetheless, defendant hearing. does not conducting an other- fy proceeding with in violation of wise hearing admirable does not excuse 32( )(3)(A)'s Rule requirements.” [c] proceed decision to in the face of Tate's deni- Cruse, States v. Fed.Appx. Cir. presentence al that had he read the report 2003) (Prior to taking amendments effect and counsel's statement to the effect that he 32(i)(1)(A) December Rule was found at had not presentence discussed the revised re- 32(c)(3)(A)). Further, Rule despite any port frus- his client. with opportunity or had had reviewed times Tate both report, ade “No, Tate’s answers sir.”
replied Tate had court that quately apprised 32(i)(1)(A) report, not read error, a a claim of preserve To requires. ... ] party need “inform! court’s objection party’s [of] objection.” for that grounds action and 51(b). Tate’s answers Fed.R.Crim.P. informed questions *14 hearing proceeded, if the obli its verification failed court would have 32(i)(1)(A). Nothing gation under Rule required. more was responses to Because sufficiently the is- raised questions court’s with Rule hearing’s compliance sue of precedent 32(i)(l)(A), because our fails a district very clear that when “duty [the to determine to fulfill its attorney had read and and his defendant] report” the presentence [the] discussed resen- requires do so “failure to I would vacate tencing,” resentencing. United and remand Mitchell, 953, 955 v. States respectfully I dis- Accordingly, sent. America,
UNITED STATES Plaintiff-Appellee, SMITH, Kimberly Defendant- Sue Appellant. No. 06-1218. Appeals, Court Sixth Circuit. 5, 2008. Argued: Feb. Feb. 2008. and Filed: Decided notes copy previously had received 32(i)(1)(A) Federal Rule urges also revised PSR. provides Procedure of Criminal Rules dis- that both the fact us to consider verify ... must sentencing, the “[a]t well-acquainted Irby were trict court and the defendant’s defendant with his cooperate Tate’s refusal with pre- and discussed attorney have read In- proceedings. attorney throughout any addendum report and so deed, that Tate had been explains literal com Although require we report.” Irby re- had unwilling cooperate that 32(i)(1)(A), with pliance