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19 F.3d 30
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gary A. HERSHKOWITZ, Defendant-Appellant.No. 93-30284.
United States Court of Appeals, Ninth Circuit.
Submitted March 8, 1994.*
Decided March 10, 1994.Before: FLETCHER, BRUNETTI and TROTT, Circuit Judges.
1MEMORANDUM**
2Gary A. Hershkowitz appeals his sentence for possession of marijuana with intent to distribute, in violation of 21 U.S.C. Sec. 846. We affirm.
3Hershkowitz pleaded guilty. At the sentencing hearing, the following colloquy occurred:
4THE COURT: And Mr. Olson, you have had a copy of the presentence?
5MR. OLSON [defense counsel]: I have your honor, and I have had--
6THE COURT: You have gone over it?
7MR. OLSON: Yes, we have.
8THE COURT: Any additions?
9MR. OLSON: No, sir.
10THE COURT: All right. Is there any legal reason why sentence should not be pronounced?
11MR. OLSON: No, sir.
12THE COURT: Mr. Hershkowitz, do you know of any?
13THE DEFENDANT: No, I do not.
14THE COURT: Rostad?
15MR. ROSTAD [AUSA]: We know of none, your honor.
16THE COURT: All right, Mr. Olson, do you wish to make a statement?
17MR. OLSON: Yes, your honor. I ...
18* * *
19THE COURT: Mr. Hershkowitz, do you wish to say anything?
20THE DEFENDANT: I would just like to apologize to the court for all the trouble I've caused and....
21Hershkowitz argues that the district court violated Fed.R.Crim.P. 32(a)(1)(A). That rule reads, in part:
22Before imposing sentence, the court shall also--
23(A) determine that the defendant and defendant's counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3)(A) or summary thereof made available pursuant to subdivision (c)(3)(B).
24The plain language of the rule "requires that the court determine whether or not the defendant and his counsel have had the opportunity to read and discuss the report." United States v. Lewis, 880 F.2d 243, 245 (9th Cir.1989). It does not require that the court "specifically ask the defendant whether he has read the presentence report." Id. The requirements of the rule are met when the court "relies on evidence indicating that a defendant has read the presentence report and discussed it with counsel." Id. at 246 (emphasis added).
25Hershkowitz argues that this case is "remarkably similar" to United States v. Sustaita, 1 F.2d 950 (9th Cir.1993). In Sustaita, the defendant's counsel filed a memorandum objecting to the presentence report before the sentencing hearing. At the hearing, the attorney said:
26The objection that we have filed, the objection that we feel is appropriate in light of the recommendation submitted by the probation office is that the calculations upon which they base their quantity to me strikes at the very fundamental judicial system that we have in our country.
27Id. at 953 (emphasis in original).
28We said the "fact that Sustaita's counsel used the word 'we' twice is an insufficient basis to find that Sustaita read the presentence report." Id. The district court failed to meet the Lewis standard. Id.
29Sustaita is distinguishable. Sustaita's counsel's use of the word "we" was insufficient because it was in reference to a memorandum he filed. A defendant is far removed from that process and there is no reason to believe that he read the presentence report in that context.
30However, we find that attorney Olson's use of the word "we" in response to the court's question about whether counsel reviewed the presentence report is distinguishable. Immediately following this question, the court asked both Olson and Hershkowitz if there was any legal reason why sentence should not be pronounced. Both answered no. In this context, there is sufficient evidence to indicate that Hershkowitz read the presentence report and discussed it with counsel. Lewis, 880 F.2d at 246.
31Even if the judge did violate Rule 32, we find the error harmless. In Sustaita, we said that harmless error may be appropriate if "it is clear that no prejudice resulted." Sustaita, 1 F.3d at 954. We cited with approval United States v. Rodriguez-Luna, 937 F.2d 1208 (7th Cir.1991). In that case, remand was unnecessary because of two factors: 1) the defendant failed to allege that he had not read or discussed the report; and 2) the defendant failed to identify any fact that he was prevented from disputing as a result of the judge's violation of Rule 32. Id. at 1213.
32Like Rodriguez-Luna, Hershkowitz fails to allege that he did not read or discuss the presentence report. Notably, Hershkowitz only alleges that he "was never afforded an opportunity to comment on the Presentence Investigation Report." This is incorrect because the judge specifically asked Hershkowitz and his attorney if there was any legal reason why sentence should not be pronounced. Later, he asked Hershkowitz if he wanted to make a personal statement.
33Moreover, Hershkowitz fails to identify any factual finding that he would have disputed had he been given the opportunity. He merely says that he "could have tried to contradict some of the factual findings in the report, as well as the ultimate conclusion that there were no factors warranting a downward departure." This is distinguishable from Sustaita, where the defendant was unable to "contradict the report's factual finding that the conspiracy involved five kilograms of heroin." Sustaita, 1 F.3d at 954.
34There was sufficient evidence to indicate that Hershkowitz read the presentence report. Even if the judge erred, we find no prejudice.
35AFFIRMED.
Document Info
Docket Number: 93-30284
Citation Numbers: 19 F.3d 30
Filed Date: 3/10/1994
Precedential Status: Non-Precedential
Modified Date: 4/17/2021