United States v. Strong
United States v. Strong
Opinion of the Court
Defendant pleaded guilty to one count of bank robbery, 18 U.S.C. § 2113(d), and one count of use of a firearm during a bank robbery, 18 U.S.C. § 924(e)(1)(A), and was sentenced to a 30-month prison term on the bank robbery conviction, and a consecutive 60-month prison term on the firearm conviction. Defendant argues on appeal that he was denied due process at sentencing in that: (1) the presentence investigation report (“PSIR”) was prepared only two days before the sentencing hearing, contrary to the 35 day rule of Federal Rule of Criminal Procedure 32(b)(6)(A), and; (2) the district court failed to inquire whether defendant and his counsel had “read and discussed” the PSIR, as required by Federal Rule of Criminal Procedure 32(c)(3)(A). Defendant also challenges the denial of his request for a downward departure under United States Sentencing Guideline (U.S.S.G.) § 5K2.12. For the reasons set forth below, we AFFIRM the judgment of sentence.
I. Background
Defendant pleaded guilty to bank robbery, and use of a firearm during a bank robbery, based on the September 16, 1999 armed robbery of the PNC Bank in Louisville, Kentucky. Defendant reserved his right to argue for a downward departure in a written Rule 11 Plea Agreement. A PSIR was prepared on November 13, 2000, and was relied upon by the district court two days later at defendant’s November 15, 2000 sentencing hearing. Responding to the district court’s inquiry whether defense counsel and defendant had “reviewed the presentence investigation report including any revisions to the report,” eoun
II. 35-Day Rule of Fed.R.Crim.P. 32(b)(6)(A)
A PSIR must be furnished to a defendant not less than 35 days before the sentencing hearing unless the defendant waives this time requirement. Fed.R.Crim.P. 32(b)(6)(A).
III. PSIR Inquiry under Fed.R.Civ.P. 32(c)(3)(A)
Before imposing sentence, a district court must “verify that the defendant and defendant’s attorney have read and discussed the presentence report made available under subdivision (b)(6)(A).” Fed.R.Crim.P. 32(c)(3)(A).
The district court could reasonably determine from its sentencing hearing inquiry — whether defense counsel and defendant had “reviewed” the PSIR — that appellant and his counsel had “read and
IV. Limited Review of Denial of Downward Departure
It is well established that the denial of a downward departure from the sentencing guidelines is renewable on appeal only if the district court erroneously believed it lacked legal authority to grant the relief. United States v. Strickland, 144 F.3d 412, 418 (6th Cir. 1998) (citing United States v. Ebolum, 72 F.3d 35, 37 (6th Cir. 1995)). “[T]he district court need not explicitly state that it is aware of its discretionary power to depart downward; as long as the record makes clear such awareness.... ” United States v. Cook, 238 F.3d 786, 791 (6th Cir. 2001) (quoting Strickland, 144 F.3d at 418).
The sentencing transcript makes clear that the district court judge knew he enjoyed discretion to grant defendant’s request for a downward departure under U.S.S.G. § 5K2.12 if he believed defendant’s testimony that it was not defendant’s idea to rob the bank, and that defendant was coerced into robbing the bank by threats of force. The district court did not believe defendant’s testimony, however, and exercised its discretion in denying the request for a downward departure. Accordingly, defendant’s argument that the district court made an “uninformed” decision when denying defendant’s request for a downward departure is not renewable.
Y. Conclusion
The district court’s judgment of sentence is AFFIRMED.
. This 35-day requirement is now found at Fed.R.Crim.P. 32(e)(2) (amended 2002).
. This "read and discussed” requirement is now found at Fed.R.Crim.P. 32(i)(l)(A) (amended 2002).
Reference
- Full Case Name
- United States v. Terence B. STRONG
- Status
- Published