Opinion
No. 03-40045-01-SAC
March 31, 2004
RULING ON OBJECTIONS TO PRESENTENCE REPORT
Dale Clayton is the sole defendant named in a single count drug trafficking indictment. The defendant pleaded guilty to distribution of cocaine base in exchange for the government's agreement to, in part, recommend a sentence at the low end of the guideline range, recommend the maximum adjustment for acceptance of responsibility, and not request an upward departure if the defendant agrees not to pursue a downward departure. The Presentence Report ("PSR") calculates from the relevant conduct both a base offense level of 28 and a two-level firearm enhancement for an adjusted offense level of 30. Finding that the defendant meets the definition of career offender in U.S.S.G. § 4B1.1(a), the PSR recommends, however, using the minimum offense level of 32 required under that guideline and a total offense level of 29 after a three-level adjustment for acceptance of responsibility. The career offender sentencing guideline provision at § 4B1.1(b) mandates a criminal history category of six. The PSR also calculates a criminal history category of six using the defendant's actual prior convictions. The defendant's sentencing guideline range is 151 to 188 months.
DEFENDANT'S OBJECTIONS
The defendant lodges four objections to the PSR. The defendant first objects to ¶ 13 denying he told the confidential informant that he would sell her a gun at a later time and disputing the relevancy of marijuana. The defendant next objects to the two-point firearm enhancement in ¶ 21 and asks the court to decide this objection because the firearms finding could have "negative consequences" in the Bureau of Prison's consideration of the PSR. The defendant's third objection is with the conviction cited in ¶ 40 arguing he is unable to recall this incident. The defendant finally objects to ¶ 48 questioning whether he was on probation when the instant offense was committed. The government filed no response to these objections. The PSR writer has responded to each objection citing the documents and analysis that support those findings and conclusions.
Ruling: There is no dispute that ruling on these objections would not affect the sentencing in this case. The guideline provision for career offenders at U.S.S.G. § 4B1.1 controls the defendant's offense level and criminal history category, and the defendant's objections have no impact on the application of that guideline provision. Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure provides that for any disputed or controverted portion of the PSR, the sentencing court must either rule on the dispute "or determine that a ruling is unnecessary because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." The court hereby determines that ruling on these disputed facts would not affect the sentence to be imposed in this case and that the disputed facts will not be relied upon in sentencing the defendant.
As revealed in the 2002 Advisory Committee Notes, Rule 32 does not require a sentencing court to rule on any "unresolved objection to material matter" in the PSR that is not considered in sentencing the defendant. Though recognizing that the Bureau of Prisons consults PSRs in making various decisions such as the assignment of an institution, the Advisory Committee decided against "unduly burdening" the courts with resolving "objections that go only to service of sentence." The Committee did conclude that a sentencing court had the discretion to resolve such objections but was "not required to do so."
The defendant's objections are little more than general denials of the facts summarized from written police reports. The defendant does not proffer any contradictory evidence and does not indicate any intent to introduce evidence. The defendant's objections concern facts that are not inconsonant with other uncontroverted matters appearing in the PSR which show the defendant's involvement with firearms and other drug offenses. Under these circumstances, the court chooses not to exercise its discretion of resolving these objections.
IT IS THEREFORE ORDERED that a ruling on the defendant's objections is unnecessary because the disputed facts would not affect the sentence to be imposed in this case and because the disputed facts will not be relied upon in sentencing the defendant.