United States v. Daniels , 365 F. App'x 538 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4616
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RONALD DANIELS, JR., a/k/a Perry Lenard Metz, a/k/a Junior
Daniels, a/k/a Romello Fernandez Morton,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:08-cr-00143-DCN-1)
Submitted: January 27, 2010 Decided: February 18, 2010
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicole N. Mace, THE MACE FIRM, Myrtle Beach, South Carolina, for
Appellant. W. Walter Wilkins, United States Attorney, Peter T.
Phillips, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Daniels, Jr., pled guilty to possession of a
firearm and ammunition by a convicted felon, in violation of
18 U.S.C. § 922(g) (2006), and was sentenced to 271 months in
prison. On appeal, Daniels argues that the district court
failed to conduct a proper inquiry pursuant to Rule 32 of the
Federal Rules of Criminal Procedure, and requests this court to
vacate his sentence and remand to the district court for
resentencing. For the reasons that follow, we affirm Daniels’s
conviction and sentence.
Daniels argues only that the district court erred in
failing to ensure that he had the opportunity to review his
presentence report (“PSR”) with his counsel prior to the
sentencing hearing. Pursuant to Rule 32 of the Federal Rules of
Criminal Procedure, at the sentencing hearing, 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.” Fed. R. Crim. P. 32(i)(1)(A). While
the requirement is most easily satisfied by expressly asking
whether the report has been read and discussed, Rule 32 is also
satisfied if “a statement by counsel or defendant . . .
unequivocally demonstrate[s] that the report has been read and
discussed by them,” or if court records “allow the district
court to infer that defendant and defense counsel signed out the
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report and discussed it together.” United States v. Miller, 849
F.2d 896, 898 (4th Cir. 1988).
Where counsel fails to raise this issue with the
district court, this court’s review is for plain error. See
United States v. Lockhart, 58 F.3d 86, 88 (4th Cir. 1995).
Accordingly, a litigant is only entitled to relief where he has
demonstrated that “an error was committed,” “the error was
plain,” and it affected his “substantial rights.” Id.Here, the record does not clearly demonstrate that
Daniels read the PSR and discussed it with counsel before the
sentencing hearing. At the sentencing hearing, the court did
not expressly ask Daniels if he had the opportunity to review
the report, and nothing in the record unequivocally demonstrates
that Daniels read the report or discussed it with his counsel.
Rather, the court stated without any inquiry that “all parties
have had access to the report,” but provided no justification
for this statement. As a result, the district court committed
error, and the error was plain.
Nonetheless, Daniels has failed to demonstrate that
the error affected his substantial rights. In his brief,
Daniels argues only that he was prevented “from finding any
mitigating evidence in his case and from participating in his
defense.” Daniels explains that, “[f]or example, he did not
have the chance to determine if his criminal history was
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correct, and whether it was correctly calculated,” and that by
not being able to review the PSR he was not able to present his
“complete personal, mental, and medical history to the probation
officer and to the court.”
Despite his claims, Daniels does not assert that his
criminal history actually was incorrect, or that any such error
adversely affected his sentencing. Similarly, although he
claims not to have had the opportunity to present his full
history to the probation officer, Daniels again fails to allege
what information is not included in the PSR, or how it would
have impacted his sentence. Daniels specifically references the
fact that his counsel raised the issue of his mental health at
sentencing, but suggests that not all information about this
matter was included in the PSR. Yet, the PSR contains a
detailed recitation of Daniels’s mental and emotional health,
his personal history, and his education and employment history.
Daniels does not specify any errors or omissions in this
information or explain what supplemental information he would
have conveyed that could have affected the outcome of the
sentencing hearing. Therefore, Daniels’s claim entitles him to
no relief.
Accordingly, we affirm Daniels’s conviction and
sentence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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