United States v. Roy McLemore Jr., 5 F.3d 331 (8th Cir. 1993). · Go Syfert
United States v. Roy McLemore Jr., 5 F.3d 331 (8th Cir. 1993). Cases Citing This Book View Copy Cite
4 citation events across 2 distinct courts.
Strongest positive: United States v. David Novak (ca9, 2002-03-04)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. David Novak
9th Cir. · 2002 · confidence medium
Novak additionally argues that the Eighth Circuit’s decision in United States v. McLemore, 5 F.3d 331, 332 (8th Cir.1993) (per curiam), suggests that the time of escape for the purposes of § 2P1.1(b)(2) is the time the inmate is placed on escape status.
discussed Cited as authority (rule) Ralph Payne, Also Known as Alan Deekin v. United States
8th Cir. · 1995 · confidence medium
Sec. 4A1.2, comment. (nn.6 & 8); cf. United States v. Smith, No. 94-1962, slip op. at 6 (8th Cir. Nov. 16, 1994) (finding no error in district court's refusal to strike controverted material in PSR because Rule 32(c)(3)(D) does not require court to strike controverted material not considered in sentencing); United States v. McLemore, 5 F.3d 331, 332 (8th Cir. 1993) (per curiam) (district court not required by Rule 32(c)(3)(D) to strike any portions of PSR it did not consider in sentencing defendant).
cited Cited as authority (rule) United States v. Robert Kent Smith
8th Cir. · 1994 · confidence medium
Bayless v. United States, 14 F.3d 410, 412 (8th Cir.1994); United States v. Beatty, 9 F.3d 686, 689 (8th Cir.1993); United States v. McLemore, 5 F.3d 331, 332 (8th Cir.1993).
cited Cited "see" United States v. Charles Schrader
8th Cir. · 2017 · signal: see · confidence high
See United States v. McLemore, 5 F.3d 331, 332 (8th Cir. 1993) (reviewing district court action on PSR challenges for compliance with Rule 32).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Roy McLEMORE, Jr., Appellant
93-1728.
Court of Appeals for the Eighth Circuit.
Sep 20, 1993.
5 F.3d 331
1993 U.S. App. LEXIS 23950
1993 WL 358544
J. Michael Mayer, Des Moines, IA, argued, for appellant., Ed Kelly, Asst. U.S. Atty., Des Moines, IA, argued, for appellee.
McMillian, Hansen, Arnold.
Cited by 4 opinions  |  Published
PER CURIAM.

Roy MeLemore, Jr., appeals the twelveT month sentence imposed on him by the district court [1] after he pleaded guilty to escape from custody, a violation of 18 U.S.C. § 751(a). He argues the court erred in failing to excise prejudicial information from the presentence report (PSR), in failing to order the disclosure of confidential reports used in preparing the PSR, and in failing to grant him a seven-level reduction under U.S.S.G. § 2P1.1(b)(2) for voluntarily turning himself[*332] in within ninety-six hours of his escape. We affirm.

Federal Rule of Criminal Procedure 32(c)(3)(D) provides that, as to each controverted matter in a presentence report, the court shall either make a finding as to the allegation or a determination that no such finding is necessary because the matter will not be considered in sentencing. Here, McLemore objected to all portions of the PSR that related to allegations of sexual abuse, including the summaries of police reports, doctors’ reports, and other records. The district court made no findings in regard to these allegations, but complied with Rule 32(c)(3)(D) by stating that it would not consider any of the disputed information in sentencing McLemore. We disagree with McLemore’s assertion that it was “evident” that the court considered the information by ordering the special conditions of his supervised release. There is no indication that the court imposed the conditions because of the allegations of sexual abuse. Furthermore, we agree with the government that the district court was not required to strike any portions of the PSR that it did not consider in sentencing McLemore. Rule 32(c)(3)(D) imposes no such requirement. See United States v. Robertson, 901 F.2d 733, 735 (9th Cir.), cert. denied, 498 U.S. 962, 111 S.Ct. 395, 112 L.Ed.2d 405 (1990); United States v. Johnson, 767 F.2d 1259, 1276 (8th Cir.1985) (court has no obligation to strike any material from PSR; it need only state that controverted matter will not be considered in sentencing).

We conclude the district court did not err in failing to order the disclosure of the probation officer’s confidential report and the doctors’ reports. Rules 32(c)(3)(A) and (B) permit the nondisclosure of information under certain circumstances. Under Rule 32(e)(3)(B), if the court believes there is information that should not be disclosed, it must give the defendant an oral or written summary of the factual information to be relied on in determining the sentence, and must give the defendant an opportunity to comment upon it. In this case, the court specifically stated that it would not rely on the information contained in the confidential reports. Thus, MeLemore’s right to a fair sentencing hearing was not violated.

Because McLemore failed to assert below that he was entitled to a seven-level sentencing reduction under Guidelines section 2Pl.l(b)(2) instead of a four-level reduction under section 2Pl.l(b)(3), we will not reverse the district court’s four-level reduction unless there is plain error resulting in a fundamental miscarriage of justice. See United States v. Williams, 994 F.2d 1287, 1294 (8th Cir.1993); United States v. Ragan, 952 F.2d 1049, 1049 (8th Cir.1992). We find no such plain error in this instance. Section 2P1.1(b)(2) allows a seven-level reduction if a defendant escaped from non-secure custody and returned voluntarily within ninety-six hours. According to the parties’ stipulation of facts, McLemore and the community corrections center where he was confined entered into a furlough agreement, whereby McLemore agreed to remain at all times, unless otherwise authorized, at his wife’s residence. McLemore violated this agreement on the evening of October 24, 1992, when he left that residence without authorization. Thus, he was properly placed on escape status at that time rather than at the time he was due back at the corrections center the next day. He did not turn himself in until October 29, 1992, at 1:00 p.m., more than 96 hours after he was placed on escape status. There was no error in the calculation of the number of hours that McLemore was on escape status.

Accordingly, we affirm.

1

. The Honorable Harold D. Vietor, United States District Judge for the Southern District of Iowa.