Opinion
Case No. 2:00-CR-411 TS.
June 22, 2004
ORDER DENYING DEFENDANT'S MOTION TO CONSIDER REMOVAL OF PRIOR CONVICTION FROM PRESENTENCE REPORT
This matter is before the Court on Defendant Jack Colonna's Motion to Consider Removal of Prior Conviction from Presentence Report and Request for Hearing, filed June 4, 2004. Defendant requests that the Court remove his prior 1980 misdemeanor conviction for attempted sexual abuse from the presentence report, in an effort to adjust his security classification for a more favorable placement by the Bureau of Prisons (BOP).
The Court, having reviewed the file and being otherwise fully informed, will DENY Defendant's Motion. Further, the Court does not believe that a hearing would materially assist its determination. Therefore, a hearing will not be held on this matter.
Defendant provides no authority for his request that the Court remove a prior conviction from his presentence report. The Court has authority to add, delete or alter commentary in the presentence report, but is not authorized to delete a conviction that undisputably did occur. To the contrary, the presentence report was designed to reflect the totality of a defendant's prior criminal conduct, even if such conduct was not counted toward Defendant's guideline range, as here. It is important to note that Defendant does not challenge the validity of the conviction at issue.
18 U.S.C. § 3553, Fed.R.Crim.P. 32(d), and USSG § 4A1.1 — as well as directives from the Administrative Office of the United States Courts (AOUSC) — all dictate that the presentence report accurately reflect a defendant's prior criminal history. The introductory commentary to USSG § 4A1.1 states that a "defendant's record of past criminal conduct is directly relevant to" the sentencing purposes set forth in 18 U.S.C. § 3553. "The Presentence Investigation Report," published by the AOUSC, reiterates the statutory directive that a "sentencing court [is to] consider the history and characteristics of the defendant," and subsequent supervisors — from the BOP to the probation office supervisor upon release — "need to know the defendant's complete background for assessment of risk factors." AOUSC Pub. No. 107, Rev. 1992 (emphasis added).
In this case, Defendant did not receive any criminal history points for the conviction at issue. However, its existence is relevant to the BOP's assessment of risk posed by Defendant. Therefore, the Court finds that the action requested by Defendant is unwarranted and the Court is without authority to so act.
Further, the Bureau of Prisons has access to Defendant's criminal history record through traditional sources outside of the presentence report, so the action requested of the Court by Defendant would likely prove futile.
Based upon the above, Defendant's Motion to Consider Removal of Prior Conviction from Presentence Report and Request for Hearing is DENIED.
SO ORDERED.