Filed: Oct. 30, 2003
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 10-30-2003 USA v. Rivera Precedential or Non-Precedential: Non-Precedential Docket No. 02-4119 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Rivera" (2003). 2003 Decisions. Paper 172. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/172 This decision is brought to you for free and open access by the Opinions of the United State
Summary: Opinions of the United 2003 Decisions States Court of Appeals for the Third Circuit 10-30-2003 USA v. Rivera Precedential or Non-Precedential: Non-Precedential Docket No. 02-4119 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003 Recommended Citation "USA v. Rivera" (2003). 2003 Decisions. Paper 172. http://digitalcommons.law.villanova.edu/thirdcircuit_2003/172 This decision is brought to you for free and open access by the Opinions of the United States..
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Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
10-30-2003
USA v. Rivera
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4119
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"USA v. Rivera" (2003). 2003 Decisions. Paper 172.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/172
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEAL
FOR THE THIRD CIRCUIT
No. 02-4119
UNITED STATES OF AMERICA,
v.
JEFFREY RIVERA,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 01-cr-00385)
District Judge: Hon. Bruce W. Kauffman
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 16, 2003
BEFORE: MC KEE, SMITH and COWEN, Circuit Judges
(Filed October 30, 2003 )
OPINION
COWEN, Circuit Judge.
Jeffrey Rivera appeals from the October 28, 2002 judgment of conviction and
sentence of the United States District Court for the Eastern District of Pennsylvania. We
will vacate and remand for resentencing.
I.
Rivera was born and raised in Puerto Rico and did not come to the continental
United States until 1996. He neither speaks nor understands much of the English
language and claims to be incapable of reading English. He required the assistance of an
interpreter in his various court proceedings.
On July 11, 2001, a grand jury returned a three-count indictment against Rivera.
In Count I, Rivera was charged with conspiracy to distribute heroin and cocaine base in
violation of 21 U.S.C. § 846. Pursuant to a plea agreement, Rivera pled guilty on June
25, 2002 to the portion of this first count alleging conspiracy to distribute more than 1000
grams of heroin. The District Court dismissed the remaining charges at the October 24,
2002 sentencing hearing.
The United States Probation Office submitted a presentence investigation report
(“PSI”). This PSI was initially prepared on August 27, 2002 and then revised on
September 17, 2002.1 It was written in English, and it appears that the document was
never translated into Spanish. According to the PSI, Rivera purchased heroin and then
sold this drug in the Bethlehem, Pennsylvania area where he resided. This activity
occurred between late 1998 and June 2000. Law enforcement agents were informed that
heroin was stored and packaged at the Bethlehem residence of Rivera’s mother. They
were also told that this heroin was occasionally “stored in the refrigeration or in the
1
The PSI incorrectly gave the date of this revision as September 17, 2001.
2
bedroom of the defendant’s brother.” PSI ¶ 12. On June 9, 2000, the Pennsylvania State
Police discovered a package containing 96 grams of heroin at his mother’s home.
Rivera was allocated seven criminal history points, placing him in criminal history
category IV. This calculation was based on three prior convictions. One point was
received for a June 22, 1998 retail theft conviction in Bethlehem. Rivera was arrested on
August 25, 1994 and found guilty of possession of a controlled substance by the Superior
Court of Puerto Rico in Bayamon on February 21, 1995. This conviction resulted in three
criminal history points. Finally, three points were based on two counts of illegal
appropriation contrary to article 18 of the Puerto Rico Vehicle Protection Law. The PSI
indicated that Sierra was arrested on February 23, 1993 and convicted on July 30, 1993 by
the Bayamon Superior Court. He was sentenced to five years imprisonment for the first
charge and a consecutive term of six months for the second charge. The category IV
criminal history, together with a total offense level of 31, resulted in a sentencing range of
151 to 181 months.2
According to the PSI, Rivera’s mother, together with five maternal half-siblings
with ages between 13 and 17, have lived in Bethlehem. The report contained no mention
of the medical or mental condition of the mother and half-siblings and was silent as to any
assistance or support provided by Rivera to these relatives.
2
The PSI noted that the United States Probation Office for the District of Puerto Rico
submitted a request for official court documents relating to the two Puerto Rico
convictions.
3
Rivera appeared for sentencing on October 24, 2002. Rivera’s counsel, Assistant
Federal Defender Eric Vos, indicated that the defense has not submitted any additional
written materials. The District Court then said, “I understand, with regard to the
presentence report, that there is an objection about one of the past convictions.” App. at
22a. It then proceeded to a quite extensive examination of the defense objection to the
PSI’s inclusion of the 1993 Puerto Rico conviction. Shortly before imposing sentence,
the District Court asked the attorneys whether there were any other objections to the PSI.
The attorneys responded that there were none, and the District Court generally adopted
the PSI’s findings of fact.
Without taking the 1993 conviction into consideration, Rivera would have a
criminal history category of III, leading to a reduced sentencing range of 135 to 168
months. Assistant United States Attorney Albert S. Glenn submitted a recently received
copy of the Puerto Rico court’s 1993 certified judgment of conviction. Vos continued to
challenge this 1993 conviction, noting that Rivera “holds fast to the position that that case
was ultimately dropped.” App. at 27a. He questioned how his client could have been
arrested in August 1994 when he was supposedly sentenced to five and a half years of
incarceration for the 1993 conviction. The defense admitted that such a course of events
could merely indicate that he was released from prison early and acknowledged that
Puerto Rico’s parole and release practices are not known. But Vos continued to assert
that this timing supports the conclusion that the 1993 conviction was somehow vacated.
4
Probation Officer Michael Pascarella then addressed the District Court regarding
the efforts of a United States probation officer in Puerto Rico to verify the 1993
conviction. Although Pascarella did not speak directly with him, this Puerto Rico officer
discussed this matter with staff in Allentown, Pennsylvania. It appears that this officer
obtained the judgment of conviction from the courthouse in Puerto Rico. This judgment
was the last official document concerning Rivera’s sentence in the court folder. This
judicial file contained no indication that the conviction was set aside or that the sentence
was reduced or suspended. Pascarella continued:
[W]e do not know when the defendant was released, there are no
records in the Probation Department or the Department of Corrections
indicating when the defendant was released and it’s possible that after five
years they could have been destroyed, we just don’t know that. But -- and
the Probation officer from Puerto Rico also said that it is not an uncommon
practice that even on a five-year sentence that defendants are released after
serving a few months.
App. at 34a-35a. He further discussed Rivera’s apparently early release from
imprisonment:
. . . But the representation to us is that the -- and actually, your Honor, I can
be more specific - contact was made with the Probation Office, the
Bayamon Probation Office and the Puerto Rico Corrections Department,
who informed that -- what they’re saying is the defendant was not placed on
probation or parole for any conviction, but that doesn’t mean that the
conviction didn’t occur, it just doesn’t -- it means that he could have been
sentenced and then immediately released, and that is -- that’s the
representation that we received from the Probation officer over the phone
that there is -- they just don’t know and that it’s not unusual for defendants
to be sentenced to terms of incarceration and then to be released quickly.
5
Ohio App. at 39a.3
The District Court specifically asked Vos what further investigatory steps he could
undertake if the sentencing were to be continued. Rivera’s counsel noted the possibility
that no further information could be uncovered. Although believing “that we have
enough to go forward today,” he emphasized the negative consequences for his client if
he were incorrect. App. at 40a. He therefore suggested that Spanish-speaking
investigators at his office further look into the 1993 conviction. This would give the
defense “a chance to go back and either confirm that which seems to be confirmed today
or to dig something up that shows that we’re wrong.” App. at 40a-41a. He subsequently
stated that the District Court could render “an educated decision” on the basis of the
current record. App. at 58a.
The District Court eventually concluded that the preponderance of the evidence
supports the PSI’s criminal history determination. In imposing a 151-month term of
incarceration, it stated:
I’d like the record to reflect that that is a sentence that I would have
imposed even had I determined that the criminal history category should be
3, I have determined that it should be 4 because of what I just stated, that
the preponderance of the evidence establishes that the three points that were
in dispute should be included in the calculation and, therefore, we have a
criminal history category of 4.
App. at 59a.
3
The government also introduced a computerized criminal history record from the
United States Probation Office in Puerto Rico. 56a-57a. This document appeared “to be
consistent with the presentence report.” App. at 58a.
6
The defense also made an oral motion at the sentencing hearing for downward
departure on the basis of family circumstances. Vos explained the untimeliness of this
motion:
. . . I was recently notified by the defendant that he had a sick parent and
two sick relatives, his brother and sister. I have learned through Carmen
Herrera, because she actually found out before I did, I was not the original
attorney on this, and by the witnesses that came today that my client’s
mother suffers from severe mental illness and she is the sole caretaker for
two children who suffer from autism, and actually the agent here today
helped confirm that, he knew that also, I did not know that.
App. at 30a.
Rivera’s father-in-law, Miguel Nieves, testified on his behalf. He stated that
Rivera’s mother is “a very sick lady” who has a nervous problem and two disabled
children. App. at 49a. According to Nieves, “anybody who sees [the children] will
realize that they are sick.” App. at 49a. The defense counsel asked whether he had heard
of the children’s autism. Nieves answered in the affirmative because of the government
assistance received for their benefit. The father-in-law indicated that Rivera was always
very concerned about his mother and disabled siblings. When asked whether his son-in-
law provided financial or physical support, Nieves testified that he purchased furniture for
them, which the disabled children would break “in a couple of months.” App. at 50a. He
claimed that he sometimes went with Rivera on his visits to help these relatives. On
cross-examination, the witness admitted that he was unaware of the mother’s name and
did not know whether Rivera assisted with the rent payments. He did “know that in
7
several occasions, two or three occasions, [Rivera] would help [his mother] with the
money for food, for furniture, and so on.” App. at 51a. According to Nieves, this
assistance was provided when Rivera was not incarcerated.
Rivera also provided a brief account of his mother’s alleged plight:
I believe that truly my mother has a lot of mental problems. She doesn’t
know how to pay the rent, she doesn’t know how to pay the bills. She has
lost three apartments already. I don’t know if she’s at a shelter at the
moment.
App. at 53a. He stated that she was evicted from at least two apartments because of the
behavior of his siblings.
The District Court denied this motion to depart. Although acknowledging the
authority to depart and expressing sympathy, it held that the evidence was not sufficient
to satisfy the very high standard for departure. Rivera also still faced a statutory
mandatory minimum of ten years. According to the District Court, Rivera’s family would
therefore be required to seek other assistance even if it departed to this mandatory
minimum sentence of 120 months. The District Court accordingly imposed a sentence of
151 months imprisonment, five years of supervised release, a $1000.00 fine, and a special
assessment of $100.00. Rivera appealed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Rivera argues
that the District Court committed prejudicial error by failing to verify that he had read and
discussed the PSI with his attorney. Because this issue was not brought to the attention of
8
the District Court, Rivera must satisfy the plain error standard of review. See, e.g.,
United States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000). A defendant must
demonstrate that “(1) an error was committed; (2) the error was plain; and (3) the error
affected [the defendant’s] substantial rights.”
Id. (citing United States v. Olano,
507 U.S.
725, 732-34 (1993)). Even if these elements are satisfied, an appellate court is still not
required to order correction.
Id. (citing Olano, 507 U.S. at 734). Such a correction
should be ordered “only if the error ‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.’”
Id. (quoting Olano, 507 U.S. at 242).
It is well-established that the district court bears the obligation to ensure that the
defendant and his or her attorney have read and talked about the presentence report. At
the time of sentencing, Federal Rule of Criminal Procedure 32(c)(3)(A) required the court
to “verify that the defendant and defendant’s counsel have read and discussed the
presentence report.” 4 We have refused to view this provision as mandating that the
district court specifically ask the defendant if he had the opportunity to read and discuss
this report with his or her lawyer. Stevens, 223 F.3d at 241; United States v. Mays,
798
F.2d 78, 80 (3d Cir. 1986). This Court has adopted a more functional standard, “requiring
only that the district court ‘somehow determine that the defendant has had this
opportunity.’”
Stevens, 223 F.3d at 241 (quoting
Mays, 798 F.2d at 80).
4
This mandate now appears as Federal Rule of Criminal Procedure 32(i)(1)(a).
9
The able district judge clearly did not satisfy this standard. The District Court
never specifically inquired whether Rivera had read the PSI and discussed this document
with his lawyer. The record lacks any functional equivalent to such a direct colloquy.
The PSI itself was never translated into Spanish even though Rivera is apparently unable
to read English. The government does not point to any statement by either the defense
counsel or his client indicating that Rivera had the opportunity to read and talk about the
PSI. See Mays, 798 F.2d at 80 (holding that defense counsel’s reference to reading the
presentence report with defendant satisfied verification standard). The District Court did
note Rivera’s objection to the PSI’s inclusion of the 1993 Puerto Rico conviction and
fully considered his motion for downward departure on the basis of extraordinary family
ties and responsibilities. The District Court further asked whether there were any
additional objections to this PSI, and Vos indicated there were none. Such general
statements, however, are not sufficient to satisfy the verification requirement.
Stevens,
223 F.3d at 242 (finding that district court’s inquiry as to “any requests for additions or
corrections to the presentence” report was insufficient). The government accordingly
concedes that the District Court erred.
Rivera must still demonstrate that this plain error affected his substantial rights.
We have held that the failure to satisfy the verification requirement does not mandate
resentencing unless the defendant demonstrates that this error resulted in prejudice. See,
e.g., Stevens, 223 F.3d at 242-43. The error “‘must have affected the outcome of the
10
district court proceedings.’” Id. at 242 (quoting
Olano, 507 U.S. at 734)). The
government correctly points out that Rivera was not prejudiced merely because the
District Court adopted the PSI’s calculation of a category IV criminal history. According
to the District Court, the same term of 151 months would have been imposed even if it
agreed with Rivera that the 1993 Puerto Rico conviction had been vacated and the lower
but overlapping sentencing range under criminal history category III thereby applied. It
also appears highly unlikely that Rivera would have been able to present sufficient
evidence of family circumstances to justify a downward departure even if he had been
given the opportunity to review the PSI before sentencing. But we agree with Rivera that,
considering these two aspects together, the District Court committed a prejudicial error in
failing to ensure that he had read the PSI and discussed its contents with his lawyer.
If Rivera had the chance to review the PSI, a more developed challenge to its
inclusion of the 1993 Puerto Rico conviction could have persuaded the District Court that
this conviction had been either dismissed or otherwise vacated. According to the
government, Rivera would likely be unable to produce records supporting his claim of
dismissal. A copy of the certified judgment of conviction was submitted, and the
probation officer in Puerto Rico apparently could find no indication that this conviction
was somehow set aside. The status of this earlier conviction, however, clearly presented a
difficult question for the District Court. Rivera was arrested on August 25, 1994 even
though he had been sentenced on July 30, 1993 to an overall term of five and one half
11
years. Even though he apparently served only a fraction of this sentence, the Bayamon
Probation Office and the Puerto Rico Corrections Department indicated that Rivera was
never paroled or placed on probation. Although the probation officer from Puerto Rico
noted the possibility of an immediate release and the destruction of relevant papers,
additional evidence, possibly obtained by Spanish-speaking investigators from the
defender’s office, could further clarify this issue.
The exclusion of the 1993 conviction would result in a criminal history category of
III and a lower sentencing range of 135 to 168 months. The PSI lacked any reference to
the condition of Rivera’s mentally ill mother and autistic half-siblings as well as any
mention of the assistance provided by Rivera to these relatives. The defense did make a
last-minute departure motion based on extraordinary family ties and responsibilities, but
he could have presented a fuller account of these family circumstances if he had been
given an opportunity to review and discuss these omissions from the PSI. Rivera could
have received a lesser term within the category III sentencing range if he submitted a
more fully documented and detailed account of the needs of his mother and her children
and his efforts to help them.
The District Court accordingly committed prejudicial error, affecting the overall
fairness of the sentencing proceeding, by failing to satisfy its verification duty under Rule
32. We will vacate the District Court’s judgment and remand this matter for
resentencing. Rivera is to be accorded an opportunity to present a fully developed
12
challenge to the PSI’s inclusion of the 1993 Puerto Rico conviction. He also may submit
any further evidence of his family circumstances in an attempt to justify a sentence of less
than 151 months under the lower sentencing range that applies when the 1993 conviction
is excluded from the criminal history calculation. The District Court may certainly decide
to impose the same sentence as before on the grounds that the 1993 conviction remains
valid and the 151-month term of imprisonment therefore constitutes the lowest possible
sentence under the applicable category IV range or that his family circumstances do not
justify a lesser sentence even under the sentencing range for criminal history category III.
III.
For the foregoing reasons, the judgment of the District Court entered on October,
28, 2002 will be vacated. This matter will be remanded to the District Court for
resentencing consistent with this opinion.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Robert E. Cowen
United States Circuit Judge
13
