Opinion
CRIMINAL ACTION NO: 07-8
02-06-2012
UNITED STATES OF AMERICA v. VIRGIL ARD, JR.
ORDER AND REASONS
This closed criminal matter is before the Court on Defendant's Motion to Amend Presentence Investigation Report.
On May 16, 2007, and pursuant to the terms of a written plea agreement, Defendant Virgil Ard, Jr. pled guilty to one count of conspiring to possess 50 grams or more of crack cocaine with intent to distribute and one count of brandishing a firearm in furtherance of a drug trafficking offense. After denying his motion to withdraw his guilty plea, the Court sentenced him to consecutive terms of 120 months and 84 months in prison, to be followed by a five-year term of supervised release. Following a timely appeal, the Fifth Circuit affirmed this Court's judgment.
On December 20, 2011, the Court received a letter from Defendant requesting an order requiring the United States Probation Office to amend his presentence investigation report ("PSIR") by adding information related to his pre-conviction employment history. At the time of his sentencing hearing, Defendant's PSIR stated that his employment history was unable to be verified.
Pursuant to Rule 35(f)(1) of the Federal Rules of Criminal Procedure, a party who believes that material information has been omitted from his PSIR must object in writing within 14 days of the date he receives a copy. Here, Defendant was provided a copy of his PSIR prior to his sentencing hearing on November 14, 2007. While he did file other written objections, he failed to raise any objection related to the omission of his relevant employment history. Because this information was undisputed at his sentencing, it is no longer subject to revision. See U.S. v. Moore, 414 Fed. App'x. 862, 863 (7th Cir. 2011); FED. R. CRIM. P. R. 32(i)(3)(A)("At sentencing, the court may accept any undisputed portion of the presentence report as a finding of fact.").
Accordingly, IT IS ORDERED that Defendant's Motion to Amend Presentence Investigation Report is hereby DENIED.
New Orleans, Louisiana, this 6th day of February, 2012.
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CARL J. BARBIER
UNITED STATES DISTRICT JUDGE