At page 88 Reviewing plea agreement breach and sentencing errors28 citing cases“need not expressly ask whether the defendant has read the presentence report and discussed it with his counsel, provided 'there is ... evidence in the record from which one could reasonably infer' that the defendant and his counsel have read and discussed the report.”
- United States v. Tyrone Rogers, 678 F. App'x 108 (4th Cir. 2017).unpublishedUnited States v. Lockhart, 58 F.3d 86, 88 (4th Cir. 1995).
- United States v. Deleon, 704 F.3d 189 (1st Cir. 2013).publishedUnited States v. Espinola, 242 Fed.Appx. 709, 711 (1st Cir.2007), vacated on other grounds, 552 U.S. 1240 , 128 S.Ct. 1473 , 170 L.Ed.2d 294 (2008); see also United States v. Jeross, 521 F.3d 562, 586 (6th Cir.2008); United States v. Steve…
- United States v. Noble, 417 F. App'x 289 (4th Cir. 2011).unpublishedWith respect to the second claimed error, under Fed.R.Crim.P. 32(i)(l)(A), the district court “must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.” Howe…
- United States v. Soltero, 510 F.3d 858 (9th Cir. 2007).published United States v. Osborne, 291 F.3d 908, 910 (6th Cir.2002); United States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir.1995).
- United States v. Soltero, No. 06-50257 (9th Cir. Dec. 11, 2007).publishedUnited States v. Osborne, 291 F.3d 908, 910 (6th Cir. 2002); United States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995).
- United States v. Tapp, 276 F. App'x 258 (4th Cir. 2007).unpublishedUnited States v. Lock-hart, 58 F.3d 86, 88 (4th Cir.1995).
- United States v. Soltero, 506 F.3d 718 (9th Cir. 2007).published United States v. Osborne, 291 F.3d 908, 910 (6th Cir.2002); United States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir.1995).
- United States v. Soltero, No. 06-50257 (9th Cir. Oct. 18, 2007).publishedUnited States v. Osborne, 291 F.3d 908, 910 (6th Cir. 2002); United States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995).
- United States v. Parra, 302 F. Supp. 2d 226 (S.D.N.Y. 2004).published(finding that the government’s promise in the plea agreement to move for a downward departure if defendant provided substantial assistance was not illusory, even though the government gave defendant no opportunity to pro…)
- United States v. Solorio-Acosta, 85 F. App'x 331 (4th Cir. 2004).unpublishedA sentencing court “need not expressly ask whether the defendant has read the presentence report and discussed it with his counsel, provided ‘there is ... evidence in the record from which one could reasonably infer’ that the defendant and…
Show 18 more citing cases
- United States v. Cole, 84 F. App'x 309 (4th Cir. 2003).unpublishedUnited States v. Olano, 507 U.S. 725, 732-36 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993); United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.1995).
- United States v. Locklear, 53 F. App'x 669 (4th Cir. 2002).unpublishedA sentencing court “need not expressly ask whether the defendant has read the presentence report and discussed it with his counsel, provided 'there is ... evidence in the record from which one could reasonably infer’ that the defendant and…
- United States v. Hardy, No. 96-4458 (4th Cir. Jan. 26, 1998).unpublishedAccordingly, each of these offenses is a Class A felony.7 And since the offenses that led to the imposition of Hardy's super- vised release include Class A felonies, the statutory maximum term of imprisonment upon revocation of his supervi…
- United States v. Perkins, No. 95-5698 (4th Cir. Mar. 10, 1997).publishedThe Fifth and Eighth Circuits have refused to correct plain _________________________________________________________________ 15 See United States v. Muzika, 986 F.2d 1050, 1055 (7th Cir. 1993) (no waiver because district court failed to g…
- United States v. Daniel Perkins, United States of Am. v. Daniel Perkins, 108 F.3d 512 (4th Cir. 1997).publishedOlano, 507 U.S. at 736 , 113 S.Ct. at 1778 (internal quotation marks omitted; alteration in the original); United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.1995). 19 .
- United States v. Ford, 88 F.3d 1350 (4th Cir. 1996).publishedUnited States v. Olano, 507 U.S. 725, 732-36 , 113 S.Ct. 1770, 1777-78 , 123 L.Ed.2d 508 (1993); United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.1995).
- United States v. Melvin A. Ford, United States of Am. v. Cynthia Evette Brown, United States of Am. v. Carlos Edwin McGill United States of Am. v. Michael Dewayne Short, United States of Am. v. Eric S. Brown, United States of Am. v. Norman O'Neal Brown, United States of Am. v. Walter Trevaughn Smith, United States of Am. v. Jeffrey Andrew Reid, A/K/A U.S., United States of Am. v. Roderick Brown, United States of Am. v. Hassan Lafiek Smith, United States of Am. v. Robert Antonio Williams, A/K/A John Doe, A/K/A Gibby, United States of Am. v. Michael Steven Smith, A/K/A Black Mike, A/K/A Smitty, 88 F.3d 1350 (4th Cir. 1996).publishedUnited States v. Olano, 507 U.S. 725, 732-36 , 113 S.Ct. 1770, 1777-78 , 123 L.Ed.2d 508 (1993); United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.1995).
- United States v. Glenn, No. 95-5547 (4th Cir. May 2, 1996).unpublishedWade v. United States, 504 U.S. 181, 185-86 (1992); United States v. Lockhart , 58 F.3d 86, 88 (4th Cir. 1995). _________________________________________________________________ *United States Sentencing Commission, Guidelines Manual (Nov.…
- United States v. James Aaron Glenn, 85 F.3d 617 (4th Cir. 1996).unpublishedWade v. United States, 504 U.S. 181, 185-86 (1992); United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.1995). 3 Due to his prior drug and robbery convictions, Glenn was classified as a career offender under U.S.S.G. § 4B1.1, resulting in a…
- Cir.1995) (quoting United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988)) (alteration in original). Where, as here, a, 371 F. App'x 429.unpublishedUnder Fed.R.Crim.P. 32(i)(l)(A), the district court “must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.” However, the court “need not expressly ask whe…
- United States v. Dwayne Stallings, No. 18-4389 (4th Cir. Mar. 18, 2019).unpublishedSee United States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995).
- United States v. Daniels, 365 F. App'x 538 (4th Cir. 2010).unpublishedSee United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.1995).
- United States v. Little, No. 00-4141 (4th Cir. Oct. 19, 2000).unpublishedSee United States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995).
- United States v. Rene Munoz, No. 99-4097 (4th Cir. Feb. 24, 2000).unpublishedSee United States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995).
- United States v. Merritt, No. 96-4149 (4th Cir. Apr. 22, 1998).unpublished See United States v. Lockhart, 58 F.3d 86, 88 (4th Cir. 1995). "[B]efore vacating [Grady's] sentence, we must be convinced that (1) an error was committed; (2) the error was plain; and (3) the error affected Grady's substantial rights." Id.
- United States v. Sandoval-Rocca, No. 00-4474 (4th Cir. Dec. 14, 2000).unpublishedEven if the threshold requirements are satisfied, we must then exer- cise our discretion to determine whether the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at 736 (quo…
- United States v. Donald Courtois, 131 F.3d 937 (10th Cir. 1997).publishedCompare Laday, 56 F.3d at 25 n. 1, 26 (holding language providing government “-will file” motion if defendant provides substantial assistance obligates government to give defendant opportunity to do so) with Price, 95 F.3d at 366, 368-69 (…
- United States v. Courtois, No. 96-5105 (10th Cir. Dec. 11, 1997).publishedCompare Laday, 56 F.3d at 25 n.1, 26 (holding language providing government “will file” motion if defendant provides substantial assistance obligates government to give defendant opportunity to do so) with Price, 95 F.3d at 366, 368-69 (ho…
At page 89 declining to remand despite a Rule 32 violation where the defendant “failed to show that the error would have affected his sentence21 citing cases
- United States v. Jason Dix, No. 19-4725 (4th Cir. June 8, 2023).published(declining to remand, despite a Rule 32 violation, where the defendant “failed to show that the error would have affected his sentence)
- United States v. Jason Dix, 64 F.4th 230 (4th Cir. 2023).published(declining to remand, despite a Rule 32 violation, where the defendant “failed to show that the error would have affected his sentence)
- United States v. Jason Dix, 60 F.4th 61 (4th Cir. 2023).published(declining to remand, despite a Rule 32 violation, where the defendant “failed to show that the error would have affected his sentence)
- United States v. Faisal Hashime, 734 F.3d 278 (4th Cir. 2013).published Even before Ming Hong, we neglected to capture the essence of what Solem and Polk actually instructed, as we confidently maintained that “[i]t is well- settled that proportionality review is not appropriate for any sentence less than life…
- United States v. Martinez, 421 F. App'x 940 (11th Cir. 2011).unpublished(applying plain error analysis to hold that when defendant pointed to no portion of the PSI that he would have challenged had the district court conducted an express inquiry, he did not show prejudice and vacatur and rem…)
- United States v. Hughes, 96 F. App'x 136 (4th Cir. 2004).unpublishedThe district court complied fully with the mandates of Fed.R.Crim.P. 32(i), see U.S. v. Lockhart, 58 F.3d 86, 89 (4th Cir.1995), and did not abuse its discretion in denying Hughes’ motion for continuance.
- United States v. Walker, 47 F. App'x 639 (4th Cir. 2002).unpublishedUnited States v. Lockhart, 58 F.3d 86, 89 (4th Cir.1995).
- United States v. Castillo-Tapia, No. 01-50262 (5th Cir. Sept. 26, 2001).publishedCir. 2000). 3 United States v. Lockhart, 58 F.3d 86, 89 (4th Cir. 1995). 4 United States v. Rodriguez-Luna, 937 F.2d 1208, 1213 (7th Cir. 1991). 5 United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir. 1994). 6 United States v. Range…
- United States v. Esparza-Gonzalez, 268 F.3d 272 (5th Cir. 2001).publishedUnited States v. Lockhart, 58 F.3d 86, 89 (4th Cir.1995). 4 .
- United States v. Reynolds, 10 F. App'x 62 (4th Cir. 2001).unpublishedUnited States v. Lockhart, 58 F.3d 86, 89 (4th Cir.1995).
Show 11 more citing cases
- United States v. Nappi, No. 99-6126 (3d Cir. Mar. 21, 2001).(concluding that defendant failed to demonstrate that he was prejudiced by the court's Rule 32(c)(3)(A) violation where he could not "point[] to any portion of the presentence report that he would have challenged had the…)
- United States v. Robert Tequan Nappi, A/K/A Quan Nappi, A/K/A Keith Wade, Robert Tequan Nappi, 243 F.3d 758 (3d Cir. 2001).publishedIn the circumstances, he has failed to show us anything that would even justify an inference, let alone prove, that the District Court’s sentence was bound to be different *771 if Nappi had been afforded a copy of the state PSI in advance…
- Hawkins v. Hargett, 200 F.3d 1279 (10th Cir. 1999).publishedSeveral courts have determined that the availability of parole should foreclose proportionality review altogether, on the reasoning that any sentence less than life without parole can never be “grossly disproportionate.” See, e.g., United,…
- United States v. Hyman, No. 96-4855, 1998 WL 200320 (4th Cir. Apr. 27, 1998).unpublished As we held in Lockhart, if the defendant fails to show that the error would have affected his sentence then remanding for resentencing "would be a fruitless exercise." Lockhart, 58 F.3d 86, 89 (4th Cir. 1991) (quoting Lewis, 10 F.3d at 109…
- United States v. James Malcolm Archer, 70 F.3d 1149 (10th Cir. 1995).publishedWe note that "it is readily apparent that appeals such as this could be avoided if the district court would ask, without exception, a series of routine questions designed to provide it with the information necessary to make the determinati…
- United States v. Stevens, No. 99-1682 & 99-1683 (3d Cir. Aug. 14, 2000). (applying plain error analysis to hold that when defendant pointed to no portion of the PSR that he would have challenged had the district court conducted an express inquiry, he did not show prejudice and vacatur and rem…)
- United States v. Dwayne Stevens, 223 F.3d 239 (3d Cir. 2000).published (applying plain error analysis to hold that when defendant pointed to no portion of the PSR that he would have challenged had the district court conducted an express inquiry, he did not show prejudice and vacatur and rem…)
- United States v. Alfredo Delacruz, 89 F.3d 836 (6th Cir. 1996).unpublishedSee United States v. Lockhart, 58 F.3d 86, 89 (4th Cir.1995). 10 AFFIRMED.
- United States v. Tyrone Eugene Johnson, A/K/A Jap, United States of Am. v. Kevin Terrell Jackson, 67 F.3d 297 (4th Cir. 1995).unpublishedSee United States v. Lockhart, 58 F.3d 86, 89 (4th Cir.1995). 22 Next, Appellants insist that there is no scientific distinction between cocaine and cocaine base, so that under the rule of lenity, they must be sentenced consistent with the…
- United States v. Nicholas Young, No. 19-4504 (4th Cir. June 16, 2020).unpublished(declining to remand despite a Rule 32 violation where the defendant “failed to show that the error would have affected his sentence)
- United States v. James Cobler, 748 F.3d 570 (4th Cir. 2014).published (stating that proportionality review “is not appropriate” for any such sentence)
v.
Leroy LOCKHART, Jr., Defendant-Appellant
Affirmed by published opinion, Judge WILKINS wrote the opinion, in which Judge HALL and Judge WILKINSON joined.
OPINION
WILKINS, Circuit Judge:Leroy Lockhart, Jr. pled guilty pursuant to a plea agreement to possessing with the intent to distribute cocaine base, see 21 U.S.C.A. § 841(a)(1) (West 1981), and to using or carrying a firearm during and in relation to a drug trafficking crime, see 18 U.S.C.A. § 924(c) (West Supp.1995). He now alleges that the Government breached the plea agreement, that the district court failed to comply with Federal Rule of Criminal Procedure 32(c)(3)(A), and that his sentence is violative of the Eighth Amendment. We affirm.
I.
Lockhart’s plea agreement included the parties’ stipulations that the amount of cocaine base attributable to him was 19.4 grams (thus invoking a mandatory minimum sentence of 60 months on the § 841(a)(1) charge, see 21 U.S.C.A. § 841(b)(1)(B) (West Supp.1995)) and that he was subject to a mandatory 60-month sentence on the § 924(e) firearms charge to be served consecutively to the sentence imposed on the narcotics charge. The parties also stipulated that, if requested to do so, Lockhart would provide the Government with information regarding other criminal activity within his knowledge. In return for Lockhart’s cooperation, the Government agreed to move for a downward departure if, in its sole discretion, it determined that he had provided substantial assistance.
Prior to sentencing, the United States Probation Office prepared a presentence report and attempted to deliver it to Lockhart, but was unable to do so because Lockhart had provided a fictitious address. Because Lock-hart could not be located, the Probation Office delivered two copies of the report to his counsel, Aaron Michel. Shortly thereafter, Michel filed objections to four paragraphs of the presentenee report. Two of these objections were prefaced by the phrases “The Defendant maintains” and “The Defendant objects.” At the sentencing hearing, the district court adopted the factual findings of the presentence report without objection, noted that Lockhart was subject to a statutory mandatory minimum sentence of 60 months on each count with the sentence for the § 924(c) charge to be served consecutively to the sentence on the § 841(a)(1) charge, and
[*88] accordingly sentenced Lockhart to 120 months imprisonment.
II.
Lockhart first maintains that the Government breached the plea agreement by refusing to provide him with an opportunity to render substantial assistance and thus earn a downward departure. See 18 U.S.C.A. § 3553(e) (West Supp.1995). Lockhart claims that the Government engaged in a “bait-and-switch” scheme, inducing him to plead guilty with the illusory promise of a substantial assistance motion.
The plea agreement clearly granted the Government discretion in determining whether to seek assistance from Lockhart and whether to move for a downward departure. And, Lockhart does not allege that the Government was motivated by any type of impermissible animus in failing to provide him with an opportunity to provide assistance or that this failure was not rationally related to a legitimate Government end. Cf. Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 1843-44, 118 L.Ed.2d 524 (1992) (When there is no binding obligation on the Government to make a motion for downward departure, the failure to do so may be challenged only on the basis of unconstitutional motive or lack of a rational relationship to a legitimate governmental objective.); United States v. Maddox, 48 F.3d 791, 795 (4th Cir.1995). Accordingly, we reject this argument.
III.
Lockhart also claims that the district court violated Federal Rule of Criminal Procedure 32(c)(3)(A) by failing to determine whether he had read the presentence report and discussed it with his attorney prior to sentencing. Lockhart contends that this error entitles him to a remand for resentencing. Because Lockhart did not raise this issue before the district court, we review it only for plain error. See United States v. Olano, — U.S. -, -, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993); cf. United States v. Lewis, 10 F.3d 1086, 1092 (4th Cir.1993) (applying plain error analysis to denial of allocution in violation of Rule 32(c)(3)(C)). Thus, before vacating Lock-hart’s sentence we must be convinced that (1) an error was committed; (2) the error was plain; and (3) the error affected Lockhart’s substantial rights. Olano, — U.S. at - - -, 113 S.Ct. at 1777-78. Once these threshold requirements are satisfied, we must also decide whether the error is of a type that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Olano, — U.S. at -, 113 S.Ct. at 1779 (internal quotation marks omitted; alteration in original).
Rule 32(c)(3)(A) provides in pertinent part that “[bjefore imposing sentence, the court must ... verify that the defendant and defendant’s counsel have read and discussed the presentence report.” (Emphasis added.) On its face, the language of the Rule is mandatory and allows no exceptions. However, the district court need not expressly ask whether the defendant has read the presentence report and discussed it with his counsel, provided “there is ... evidence in the record from which one could reasonably infer” that the defendant and his counsel have read and discussed the report. United States v. Miller, 849 F.2d 896, 897-98 (4th Cir.1988).
[Fjunctional equivalency [to an express inquiry by the district court] should not lightly be assumed. Though there may be cases in which a defendant, despite the absence of the focused inquiry that the language of the rule requires, can be said to have received its functional equivalent, such cases will be few and far between. Doubts should be resolved in the defendant’s favor.
United States v. De Alba Pagan, 33 F.3d 125, 129 (1st Cir.1994) (discussing allocution).
Here, the record before the district court does not adequately demonstrate that Lockhart had read the presentence report and discussed it with his counsel before sentencing. The only evidence to support such a conclusion are objections to the presentence report, filed by Lockhart’s attorney approximately three months prior to sentencing, which stated that “[t]he Defendant” objected to certain factual statements. This informa[*89] tion simply is not sufficient to allow the district court to determine, without an express inquiry, that Lockhart had read and discussed the presentence report with his counsel. Our precedents, and Rule 32(c)(3)(A) itself, require more. See United States v. McManus, 23 F.3d 878, 884-85 (4th Cir.1994) (Rule satisfied when copy of pre-sentence report bearing marks in the defendant’s handwriting was entered into record and the defendant objected to portions of the report and discussed the evidence at sentencing); United States v. Daniel, 3 F.3d 775, 780 (4th Cir.1993) (Rule satisfied when defendant researched various sentencing issues and repeatedly interrupted the sentencing hearing to correct counsel’s misstatements), cert. denied, — U.S. -, 114 S.Ct. 1101, 127 L.Ed.2d 413 (1994). We therefore conclude that error was committed and that the error was plain.
Nevertheless, we need not vacate Lock-hart’s sentence because he has failed to show that the error would have affected the outcome of the sentencing proceeding, ie., that it was prejudicial. See Olano, — U.S. at - - -, 113 S.Ct. at 1777-78. * Lock-hart has not pointed to any portion of the presentence report that he would have challenged had the district court made an express inquiry. And, as previously noted, Lockhart received the minimum sentence allowed by the law. Thus, Lockhart has failed to show that the error would have affected his sentence and remand for resentencing “would be a fruitless exercise.” Lewis, 10 F.3d at 1092. We therefore affirm Lock-hart’s sentence.
Because the district court strayed from the plain, mandatory language of Rule 32(c)(3)(A), we take this opportunity to emphasize that it is by far the better approach for the district court simply to inquire at the sentencing hearing whether the defendant has received and read the presentence report and whether he has discussed it with counsel. Even though we have declined to impose specific procedures for the application of Rule 32(c)(3)(A), see McManus, 23 F.3d at 885, we note that it is readily apparent that appeals such as this could be avoided if the district court would ask, without exception, a series of routine questions designed to provide it with the information necessary to make the determinations required by Rule 32(e)(3)(A). And, although under the specific circumstances here Lockhart’s sentence need not be vacated because he failed to make any showing of possible prejudice, such will not always be the case.
IV.
Finally, Lockhart claims that his 120-month sentence is violative of the Eighth Amendment prohibition against cruel and unusual punishment. It is well settled that proportionality review is not appropriate for any sentence less than life imprisonment without the possibility of parole. United States v. Polk, 905 F.2d 54, 55 (4th Cir.), cert. denied, 498 U.S. 985, 111 S.Ct. 519, 112 L.Ed.2d 531 (1990). Thus, we decline to consider this argument.
Having determined that all of Lockhart’s assertions of error are without merit, we affirm.
AFFIRMED.
The Supreme Court noted in Olano that "[tjhere may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome." Olano, - U.S. at -, 113 S.Ct. at 1778. Violations of Rule 32(c) do not fall within this category of plain errors. Cf. United States v. Cole, 27 F.3d 996, 999 ("Our decision in Lewis [, 10 F.3d at 1092,] has foreclosed any argument that a denial of allocution per se affects 'substantial rights.' ”).