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THE RESUME FROM HELL
Rigoberto Ramirez-Gonzalez pled guilty to illegal reentry following deportation. At sentencing, he objected to a recommendation in the Presentence Investigation Report (“PSR”) that applied an 8-level enhancement for having committed an “aggravated felony.” The district court agreed and struck the enhancement. However, although Bert asked for it, the court did not order the PSR corrected to reflect that he had not committed an aggravated felony. The judge suggested his holding would be apparent in the Statement of Reasons attached to the judgment.
Bert appealed. While the appeal was pending, he completed his sentence and was deported.
Last week, the 5th Circuit said that what the judge had done was good enough.
There may be no more schizophrenic document in the federal criminal system than the PSR. It’s written by a Probation Officer who takes every word of the government as a pearl of truth, while remaining skeptical of the defendant even if he alleges that the sun rises in the east. At sentencing, the court is free to (and often does) ignore anything in the document it deems irrelevant to the sentence it imposes. Treatment of the contents of the PSR at sentencing could be fairly characterized as ‘cavalier.’
But once sentencing ends, the PSR begins to follow the defendant like an ugly and unwanted pet. The Bureau of Prisons deems every word in the document to be gospel, and relies on it to place inmates in facilities, qualify them for programs, and even determine how much halfway house or home confinement they should get at the end of their sentences. On supervised release, the Probation Department treats every word of the PSR as if it were vetted by the Almighty Himself. In sum, the PSR is pretty much like being forced to seek work with a resume written by the last guy who fired you. A resume you can never correct.
Bert wasn’t willing to let that happen. Sure the judge at sentencing said there had been no aggravated felony, but the PSR still said there has been. He argued that Federal Rule of Criminal Procedure 32(i)(3)(B) required the Court to correct misstatements in the PSR about the aggravated felony.
The PSR is a permanent court document that may be corrected at any time, even if the defendant is not present, the Court said, agreeing with Bert that errors in the PSR were “not harmless because it affects the defendant’s substantial rights,” and that “like a judgment, the PSR determines the rights and obligations of the defendant going forward.” To the extent that a PSR is “like a judgment,” the Court said, a challenge to an erroneous PSR is not moot after deportation.
Bert’s PSR listed a maximum sentence based on the spurious “aggravated felony,” and contained a specific reference to the aggravated felony being in his background. It also included an inaccurate total offense level and an inaccurate fine range. The district court did not specifically address the maximum sentence, but by finding that there was no “aggravated felony,” the “court effectively rejected the PSR’s recommendation of a twenty-year maximum and held instead that the ten-year maximum sentence of 8 U.S.C. § 1326(b)(1) applied.” In the Statement of Reasons, however (which is filed with the Judgment), the district court stated that the total offense level was “10,” so, the Circuit ruled, “the correct offense level and proper fine range could be easily determined. In short, the determinations that Ramirez-Gonzalez seeks are implicit from the court’s bench rulings and the Statement of Reasons, and that suffices for the purposes of Rule 32(i)(3)(B).”
After all, the appellate court said, “the district court did ‘append’ a Statement of Reasons that would necessarily be included with the PSR sent to the Bureau of Prisons. The Statement of Reasons stated that the court adopted the PSR ‘with the following changes . . .’” Those changes included raising the offense level by 4 levels, although the PSR recommended an eight-level enhancement.” Of course, anyone who read both the PSR and Statement of Reasons, and cross-referenced the SOR findings with the PSR findings, and double-checked against the transcript of the sentencing (which may or may not have ever been prepared, and which is not provided to the BOP or other agencies that get the PSR), it would be as plain as the nose on one’s face.
The Court of Appeals said the district court’s treatment of Bert’s complaint was good enough, because “the court’s implicit findings on the disputed issues were necessarily apparent from the explicit statements in the Statement of Reasons.”
United States v. Ramirez-Gonzalez, Case No. 15-41065 (5th Cir., Oct. 26, 2016)