PHILLIPS, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore submitted without oral argument.
Appellant Steven Carmichael Warren has faced criminal charges for much of his life. In 1998, he committed an armed bank robbery in Missouri and served about twelve years in federal prison.
Warren now challenges the procedural reasonableness of that sentence. He contends that he disputed the factual accuracy of statements in the presentence report and that the district court erred by increasing his sentence after assuming the truth of those disputed statements. However, because Warren did not raise this contention in the district court, we review only for plain error. We find no error because Warren did not "dispute" the presentence report so as to prevent the district court from assuming the truth of its contents. Moreover, the district court did not rely on the sections at issue and instead considered other factors under 18 U.S.C. § 3553 in determining that a higher sentence was appropriate. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
In 2011, Warren robbed the National Bank of Kansas City in Leawood, Kansas. During the robbery, he pointed a loaded semi-automatic handgun at two teller operators and demanded money. They complied, and Warren fled the bank with $7,030. After a short pursuit, police apprehended Warren — along with the handgun and stolen funds.
A grand jury returned a three-count indictment, charging Warren with (1) carrying a firearm during and in relation to and in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c), (2) armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), 18 U.S.C. § 924(a)(2) and (e). He pleaded guilty to the armed bank robbery count, and the government agreed to dismiss the other charges.
Before Warren's sentencing, a probation officer prepared a presentence report (PSR). The PSR documented all of Warren's prior convictions, including an earlier federal felony conviction for armed bank robbery, a felony conviction for the sale of a PCP-laced cigarette, a felony conviction for child abuse, and over a dozen misdemeanor convictions — the majority of which involved violent conduct. As usual, the PSR also included a section entitled "Other Criminal Conduct." This section listed 22 of Warren's prior arrests and described from police reports the circumstances and conduct underlying the majority of those arrests — none of which had resulted in conviction. After determining that Warren qualified as a career offender, the PSR set forth an advisory guideline range of 188-235 months in prison.
In response to the PSR, Warren objected to his classification as a career offender. In addition, he objected to the inclusion of paragraph 33 and paragraphs 56-76 of the PSR, all of which described his prior arrests not resulting in conviction.
Warren then filed a presentencing memorandum in which he did not object to the PSR calculations but asked the court to exercise leniency and refrain from applying the career-offender enhancement. Warren also repeated his objection to the inclusion of "other criminal conduct" in the PSR. This time, he appeared to challenge the relevance of this conduct on the ground that it was not sufficiently related to the offense of conviction. He again stated that the other criminal conduct in the PSR was old (from 1995 or before) and that "due to the wording of the PSR, one is left with the option to speculate whether [the conduct] truly occurred." R. vol. 1, at 33. Warren also argued that his other
The government filed its own memorandum and argued for an upward variance from the advisory guideline range. It relied on the 18 U.S.C. § 3553 sentencing factors — particularly § 3553(a)(1), which requires sentencing courts to consider "the nature and circumstances of the offense and the history and characteristics of the defendant." Based on the findings in the PSR, the government asserted that Warren was a "violent career criminal" who, in addition to trafficking drugs and committing armed bank robberies, had been convicted of violent crimes against five separate women and a child. Id. at 51. The government asked for the statutory maximum — 300 months in prison.
At sentencing, Warren renewed his objections. Once again, he argued that a career-offender enhancement would be unduly harsh, in part, because his prior convictions were old. He then raised the following objection to "other criminal conduct":
R. vol. 2, at 54-55. Warren continued to assert that his other criminal conduct was old and that "without having any ability to test the veracity of ... those statements... you could draw the conclusion that all those statements are false because they weren't prosecuted or they weren't believed by a jury." Id. at 56.
The district court determined that Warren was indeed a career offender and that the PSR had correctly calculated his advisory guideline range.
The court then turned to the government's request for an upward variance and afforded Warren another opportunity to present argument. Warren urged the district court not to vary upward because it had already taken his criminal conduct into account in applying the career-offender enhancement and because, once again, his convictions were old.
After considering the § 3553 factors, the district court varied upward 65 months
Warren did not say anything after the district court resolved his "other criminal conduct" objection. At the conclusion of the sentencing hearing, he generally stated that he was "in disagreement with the findings," but he did not identify the specific "findings" at issue. Id. at 89.
On appeal, Warren contends that the district court procedurally erred by ignoring his objection to facts in the PSR. According to Warren, the district court simply assumed the truth of all disputed statements regarding his prior arrests not resulting in conviction, and then relied on those statements to impose a higher sentence.
Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we review "both the reasonableness of the length of the sentence, as well as the method by which the sentence was calculated." United States v. Romero, 491 F.3d 1173, 1175 (10th Cir.2007). Warren here challenges only the method by which the district court arrived at his sentence; he makes no argument that the length of his sentence is substantively unreasonable. His appeal is therefore limited to a claim of procedural unreasonableness.
"A sentence is procedurally unreasonable if the district court incorrectly calculates or fails to calculate the Guidelines sentence, treats the Guidelines as mandatory, fails to consider the § 3553(a) factors, relies on clearly erroneous facts, or inadequately explains the sentence." United States v. Haley, 529 F.3d 1308, 1311 (10th Cir.2008) (citing Gall v. United States, 552 U.S. 38, 50-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Procedural reasonableness also requires that the district court "afford[] the defendant his rights under the Federal Rules of Criminal Procedure." United States v. Martinez-Barragan, 545 F.3d 894, 898 (10th Cir.2008) (alteration omitted) (quoting United States v. Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007)).
Warren argues that the district court erred by "simply adopt[ing]" the PSR in full and assuming the truth of its disputed contents. Appellant's Br. at 6. Federal Rule of Criminal Procedure 32(i)(3)(B) governs this particular procedural challenge. It provides that a sentencing court "must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." Fed. R.Crim.P. 32(i)(3)(B). A court does not satisfy its obligation under the rule by "simply adopting" a disputed PSR (or any portion thereof) as its finding. United
In United States v. Williamson, a defendant similarly claimed on appeal that the district court had failed to properly resolve disputed facts under the earlier (but materially indistinguishable) version of Rule 32(i)(3)(B). 53 F.3d 1500, 1526-27 (10th Cir.1995). At or before sentencing, Williamson specifically objected to a factual statement in the PSR. Id. at 1526. The district court did not directly address Williamson's objection at sentencing, but it made a general finding that the "the Presentence Investigation Report, as corrected or modified ... and the previously stated findings are accurate." Id. at 1526-27. On appeal, we acknowledged that this sort of general finding as to the accuracy of matters contained in the presentence report does not satisfy Rule 32 in the face of such a specific factual objection. Id. at 1527. But, because Williamson had not raised "a separate objection to the district court's failure to make an appropriate finding under [the earlier version of Rule 32(i)(3)(B)]," our review was "limited to determining whether this alleged failure to make a specific finding amounted to plain error." Id. We held that any error of the district court did not rise to this level. Id.
We believe plain-error review is appropriate in this case as well. See United States v. Cook, 550 F.3d 1292, 1297-98 (10th Cir.2008) (applying plain-error review in similar circumstances in light of Williamson). Like the defendant in Williamson, Warren made no separate objection to the district court's alleged failure to resolve his factual objection to the PSR. At no time during sentencing did he speak up and say the district court had violated Rule 32 or failed to properly resolve disputed facts. Instead, Warren merely voiced his "disagreement with the findings" at the conclusion of the sentencing hearing. R. vol. 2, at 89. This form objection did not alert the district court to the challenge Warren now raises on appeal. To the contrary, Warren's "disagreement" could have applied to multiple "findings" at sentencing, including the court's application of the career-offender enhancement or statements made in discussing the § 3553 sentencing factors.
Indeed, our basis for applying plain-error review here is stronger than it was in Williamson. There, the district court merely accepted the PSR without addressing Williamson's factual objection. By contrast, the district court in this case expressly addressed Warren's objection to the PSR. The court stated Warren's objection on the record. (He objected that other criminal conduct "[had] been placed in the [PSR]" because it "paint[ed] a picture of ... a career criminal and a violent person." R. vol. 2, at 84.) It then proceeded to resolve that objection by finding (1) that Warren was a career offender for other reasons, and (2) that his convictions provided "overwhelming evidence" that Warren was a violent person. Id. The district court further resolved Warren's objection by stating its view that the law permitted it to consider prior arrests not resulting in conviction for sentencing purposes — but that it would choose not to consider Warren's arrests.
"We find plain error only when there is (1) error, (2) that is plain, (3) which affects substantial rights, and (4) which seriously affects the fairness, integrity, or public reputation of judicial proceedings." Romero, 491 F.3d at 1178. Upon review of the record in this case, we conclude that Warren cannot satisfy even the first prong of plain error because the district court did not violate Rule 32(i)(3)(B) in determining his sentence.
We review compliance with the Rules of Criminal Procedure de novo. United States v. Cereceres-Zavala, 499 F.3d 1211, 1214 (10th Cir.2007). As stated, Rule 32(i)(3)(B) requires a sentencing court to make one of two possible determinations whenever any portion of a PSR is "disputed." Fed.R.Crim.P. 32(i)(3)(B). A court must either "rule on the dispute" or "determine that a ruling is unnecessary." Fed.R.Crim.P. 32(i)(3)(B).
In this case, the district court arguably determined that a ruling was unnecessary as permitted under the rule. After all, the court resolved Warren's objection to the PSR by stating its intention to "disregard" the "other criminal conduct." R. vol. 2, at 83-84. Rule 32(i)(3)(B) expressly provides that a district court may determine that a ruling on a disputed matter is unnecessary when "the court will not consider the matter at sentencing." Given this determination, no other ruling was necessary under Rule 32(i)(3)(B).
To the extent that the district court's determination could have been clearer, Warren's general and ill-defined objection to the PSR is to blame. After all, Rule 32(i)(3)(B) applies only if facts in the PSR are disputed by specific objection. See United States v. Waseta, 647 F.3d 980, 989 n. 6 (10th Cir.2011) ("Though Mr. Waseta made a general, unspecified objection to `allegations in the [PSR] that have been suggested as [grounds for] a possible upward variance' ... this sort of general objection is inadequate to trigger a district court's factfinding obligation under Rule 32." (alterations in original)). Warren's objection in this case was far too general, covering some "20 paragraphs" of the PSR.
Additionally, a defendant does not "dispute" a PSR's recitation of facts underlying his arrests unless he presents "information to cast doubt on" the facts. United
Finally, Rule 32(i)(3)(B) "is not a vehicle for advancing legal challenges to sentencing," Cereceres-Zavala, 499 F.3d at 1214, and we believe Warren's objection was more legal than factual.
Even assuming the first two prongs of plain error, Warren cannot show that his rights have been substantially affected as required under prong three. Even if we assumed that Warren raised a sufficient factual objection to the accuracy of the PSR and assumed that the district court failed to comply with Rule 32(i)(3)(B), we still would see no reason to remand for resentencing — nothing suggests a different sentence would result.
This is all the more true given the persuasive reasons the district court gave for its sentence, none of which depended on
Based on the foregoing, the judgment of the district court is AFFIRMED.
R. vol. 2, at 83-84. While the district court could have been clearer in stating its intention to disregard Warren's other criminal conduct, we understand "disregard the other" to mean the aforementioned "other criminal conduct."