United States v. Robert Hall , 456 F. App'x 873 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 7, 2012
No. 11-13707
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 1:11-cr-20117-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
ROBERT HALL,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 7, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Robert Hall (Hall) pleaded guilty to robbery affecting interstate commerce
in violation of 18 U.S.C. § 1951(a). The district court sentenced Hall to 72
months in prison, an upward variance from the applicable guideline range of 37 to
46 months. On appeal, Hall argues for the first time that the sentencing court
violated due process when it considered criminal charges contained in Hall’s
presentence investigation report (“PSI”) that were later dropped, abandoned, or
nolle prossed.
We review constitutional challenges not raised at the district court for plain
error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). In plain
error analysis, a challenging party must show “there is (1) error, (2) that is plain,
and (3) that affects substantial rights. If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. at 1298 (quotations and citation omitted). Plain error has only
limited application: “It is the law of this circuit that, at least where the explicit
language of a statute or rule does not specifically resolve an issue, there can be no
plain error where there is no precedent from the Supreme Court or this Court
directly resolving it.” United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th
Cir. 2003).
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The task of the district court in sentencing is to impose a sentence
“sufficient, but not greater than necessary, to comply with the purposes” listed in
18 U.S.C. § 3553(a)(2), including the need to reflect the seriousness of the
offense, promote respect for the law, provide just punishment for the offense, deter
criminal conduct, and protect the public from the defendant’s future criminal
conduct. See 18 U.S.C. § 3553(a)(2). To accomplish this task, the district court is
statutorily empowered to consider “the history and characteristics of the
defendant,” among other factors. Id. § 3553(a)(1). In assessing the impact of
§ 3553(a)(1), the district court is “free to consider any information relevant to [the
defendant’s] background, character, and conduct in imposing an upward
variance.” United States v. Tome, 611 F.3d 1371, 1379 (11th Cir.) (quotation
omitted), cert. denied, 131 S. Ct. 674 (2010); see also United States v. Shaw, 560
F.3d 1230, 1231-35 (11th Cir. 2009) (affirming upward variance and delineating
defendant’s criminal history, including juvenile adjudications and numerous
charges that were not prosecuted); 18 U.S.C. § 3661 (“No limitation shall be
placed on the information concerning the background, character, and conduct of a
person convicted of an offense . . . for the purpose of imposing an appropriate
sentence.”).
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The chief purpose of the PSI is to help the district court meet these
objectives. United States v. Gomez, 323 F.3d 1305, 1309 (11th Cir. 2003). The
PSI serves the purpose of a pretrial stipulation, setting out the facts of the case and
providing the parties with an opportunity to object to any information contained
therein. United States v. Scroggins, 880 F.2d 1204, 1209 n.11 (11th Cir. 1989).
We regard the failure to object to allegations of fact in a PSI as an admission of
those facts for sentencing purposes. United States v. Patterson, 595 F.3d 1324,
1326 (11th Cir. 2010). Once the defendant is given an opportunity and fails to
contest allegations in a PSI, the district court may treat those statements as
reliable. United States v. Williams, 989 F.2d 1137, 1141-42 (11th Cir. 1993).
After a careful review of the entire record and the parties’ briefs, we hold
that the district court did not commit plain error. As part of its sentencing
obligations, the district court was authorized to consider any information relevant
to Hall’s character and history, including criminal charges that were later dropped,
abandoned, or nolle prossed. See Tome, 611 F.3d at 1379; 18 U.S.C.
§ 3553(a)(1). Hall’s failure to object to descriptions of prior charges contained in
the PSI constituted an admission of those facts for sentencing purposes. See
Patterson, 595 F.3d at 1326. Moreover, nothing in the record indicates that the
district court based its sentencing decision solely on unconvicted conduct, nor did
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the court assume Hall was guilty of the charged offenses. Because Hall has failed
to show that the district court committed plain error, we affirm.
AFFIRMED.
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