PSR OBJECTIONS OVER PLAIN ERROR DOCTRINE

Criminal Defense Attorneys Must File Objections to Pre-Sentence Report in Federal Criminal Cases to Protect Appellate Rights

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The United States Congress, with the Sentencing Reform Act of 1984, established the U.S. Sentencing Guidelines. These “Guidelines” not only guide but require U.S. District Court judges to consider all the sentencing factors Congress set forth in 18 U.S.C. § 3553(a) before imposing sentence in criminal cases. The U.S. Supreme Court in a series of cases has made it abundantly clear that the Guidelines are not mandatory but rather advisory in nature—a guide for the judge to utilize in crafting the appropriate sentence.

Prior to sentencing, Rule 32(c) (1) (A) of the Federal Rules of Criminal Procedure requires that a probation officer investigate the defendant and file a presentence investigation report (“PSR”) with the court. The defendant may not waive the report even with permission of the court. The PSR must contain the following information:

  • The history and characteristics of the defendant, including his/her criminal record, financial condition, and any other factors about defendant’s past behavior that may help the court fashion the appropriate sentence.
  • The offense level determined by the probation officer and criminal history category as determined by the Guidelines.
  • Impact of the crime on the victim.
  • The kinds of non-custodial programs available if appropriate for offense charged.
  • Defendant pays restitution where the law requires.
  • Any recommendations based upon a court-ordered study of the defendant.
  • Any other required information including § 3553(a) factors.

Rule 32(e) (1) prohibits the PSR from being disclosed prior to a determination of guilt following a trial or guilty plea. The PSR under Rule 32(e) (2) must be served upon all parties involved in the case at least thirty-five days before the sentencing hearing. Rule 32(f) requires the court to permit the defendant (and the Government) an opportunity to comment upon or object to the PSR, The defendant’s comments/objections must be timely filed. Rule 32(h) requires the court to notify the parties if it is considering departing from the Guidelines sentencing recommendation for reasons not identified in the PSR.

The Fifth Circuit Court of Appeals recently handed down a ruling in the case of United States v. Blocker which reaffirmed the need for defense attorneys to not only timely but correctly object to PSRs. In this case John Tyrone Blocker pleaded guilty to one count of bank robbery and was sentenced to an 85-month term which was within the PSR’s recommended 70 to 87 month sentencing range based on the Guidelines. Blocker’s attorney objected to the PSR on just one issue: that Blocker was denied sentence reduction points for acceptance of responsibility. The district court overruled that objection.

Block’s attorney appealed the sentence to the Fifth Circuit. The basis for the appeal was that the district court erroneously added two points to Blocker’s criminal history score on the basis that he had committed the bank robbery while under what the Fifth Circuit called “active revocation of probation bench warrant.” The district court accepted the PSR’s calculation that Blocker’s offense level was 27 with a criminal history category of II.

U.S.S.G. § Guideline 4A1.1(d) authorizes a two-point increase in a defendant’s criminal history “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” The PSR had identified an active probation revocation warrant from a 1987 conviction as a basis for the § 4A1.1 (d) increase in Blocker’s criminal history.

The Fifth Circuit, however, pointed out that § 4A1.1(d) applies only if a bench warrant like the one issued in Blocker’s case “occurred within the applicable time period—10 or 15 years depending upon the type of offense”—as set forth in § 4A1.1(e). Because the actual bench warrant issued in Blocker’s case was 21 years old, it could not be counted under § 4A1.1 (d). Thus, the appeals court held that the district court committed a sentencing error by adopting the PSR’s erroneous criminal history enhancement.

But here is the downside. Defense counsel did not object to the improper criminal history enhancement prior to sentencing. The issue, therefore, was waived. While defense counsel was allowed to present the issue for the first time on appeal, review of the issue by the appeals court had to be under the “plain error” doctrine. This restrictive doctrine required the Blocker show 1) that there was an error, 2) that the error was plain, 3) that the error affected substantial rights, and 4) that the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

Blocker’s appellate attorney could easily satisfy the first two prongs of the plain error doctrine. But he ran into an insurmountable legal blockade on the third prong. To establish that the district court’s sentencing error affected Blocker’s substantial rights, defense counsel had to show that the sentencing error undermined confidence in the actual sentence imposed; or, put another way, that “but for” the error, a lesser sentence would have been imposed by the district court.

The correct sentencing Guidelines range in Blocker’s case was 70 to 87 months. The district court decided to apply a Guidelines range of 78 to 97 months In effect, Blocker’s actual sentence fell within both the correct and incorrect ranges, and because it did, the appeals court held that the defendant had failed to show the error affected his substantial rights. The Fifth Circuit said:

“ … Where, as here, the sentence—85 months—falls inside both the correct and incorrect guidelines ranges, ‘we have shown considerable reluctance in finding a reasonable probability that the district court would have settled on a lower sentence’ … In some cases we have denied relief even though the district court chose a sentence at the bottom of the incorrect range, when the sentence fell at or near the top of the correct guidelines range … We reasoned there was no evidence that the court found the bottom of ‘any range to be appropriate’ … Put simply, where the resulting sentence falls within both the correct and incorrect guidelines, we do not assume, in the absence of additional evidence, that the sentence affects a defendant’s substantial rights.”

The potential harm to Blocker because of his counsel’s failure to object to the PSR on the erroneous criminal history issue was that the district court could have possibly been persuaded to impose a sentence at the bottom of the correct range. The 85-month sentence actually imposed was just two months shy of the top correct Guidelines range of 87 months. Clearly the district court was influenced by Blocker’s elevated criminal history based on the erroneous 1987 bench warrant. Facing the district court with a criminal history Category I rather than Category II may have produced a lesser sentence for Blocker.

The third prong of the plain error doctrine—the affecting substantial rights issue—is virtually impossible to surmount, but even if a defendant can miraculously satisfy that prong, he still faces the daunting task of showing the error affected the fairness, integrity or public reputation of the proceedings against him. That’s like asking the Devil to take a Christmas vacation.

Blocker stands for a very simple reminder to defense counsel: thoroughly review PSRs and file timely objections to them, even when there is doubt that you can prevail on the merits. It’s better to be wrong in your PSR objections than trying to correct a wrong on appeal under the plain error doctrine.

SOURCES: United States v. Blocker, 2010 U.S. App. LEXIS 14890 (5th Cir. July 20, 2010); The Georgetown Law Journal, Thirty-Ninth Annual Review of Criminal Procedure (2010).

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair