United States v. Stovall ( 2003 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Stovall No. 02-1210
ELECTRONIC CITATION: 2003 FED App. 0260P (6th Cir.)File Name: 03a0260p.06 Jennifer M. Gorland, UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT OPINION
_________________ _________________
UNITED STATES OF AMERICA , X DAVID A. NELSON, Circuit Judge. Defendant Lela
Stovall here appeals a 77-month sentence imposed after she
Plaintiff-Appellee. - pleaded guilty to charges of bank fraud and conspiracy. Ms.
-
- No. 02-1210 Stovall contends that the district court committed prejudicial
v. - error by failing to make explicit findings in its rejection of a
> series of objections she presented to her presentence report.
, She further contends that some of her past criminal activity
LELA STOVALL , -
Defendant-Appellant. N was improperly double-counted in the calculation of her
criminal history score. Finding these contentions
Appeal from the United States District Court unpersuasive, we shall affirm the sentence.
for the Eastern District of Michigan at Detroit.
No. 01-80075—John Corbett O’Meara, District Judge. I
Argued: May 20, 2003 Ms. Stovall and 19 co-defendants were indicted on charges
that included conspiracy, forgery, identity theft, credit fraud,
Decided and Filed: June 13, 2003* and bank fraud. In exchange for agreement on an appropriate
sentence and the government’s promise to dismiss all other
Before: NELSON, BOGGS, and COLE, Circuit Judges. charges against her, Ms. Stovall agreed to plead guilty to
conspiracy and bank fraud.
_________________
The plea agreement included stipulations concerning each
COUNSEL of the sentencing guidelines that the parties believed to be
applicable. Among other things, the parties stipulated that
ARGUED: Carolyn A. Blanchard, Northville, Michigan, for Ms. Stovall’s base offense level should be enhanced by three
Appellant. Jennifer M. Gorland, UNITED STATES levels because of her managerial or supervisory role in the
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: conspiracy, see U.S.S.G. § 3B1.1(b); that Ms. Stovall should
Carolyn A. Blanchard, Northville, Michigan, for Appellant. receive three criminal history points for each of two prior
federal sentences of imprisonment exceeding 13 months, see
U.S.S.G. § 4A1.1(a); and that she should receive two criminal
* history points for a prior state sentence of imprisonment of at
This decision was originally issued as an “unpublished decision”
filed on June 13 , 200 3. On July 16, 2003, the court designated the least 60 days, see U.S.S.G. § 4A1.1(b).
opinion as one recommend ed for full-text publication.
1
No. 02-1210 United States v. Stovall 3 4 United States v. Stovall No. 02-1210
All told, the parties agreed that Ms. Stovall’s total offense findings and calculations under the guidelines, the court
level was 16 and that her criminal history category, based on imposed sentences totaling 77 months. This appeal followed.
a criminal history score of 14, was VI. These calculations
resulted in a guideline sentencing range of 46 to 57 months. II
The government agreed that a sentence of no more than 51
months would be appropriate. Of critical importance here, At the time of Ms. Stovall’s sentencing, Rule 32(c)(1), Fed.
Ms. Stovall agreed not to appeal any of the sentencing R. Crim. P., provided that,
calculations to which she had stipulated.
“for each matter controverted [in objections to a
After the district court accepted Ms. Stovall’s guilty plea, presentence report], the court must make either a finding
a probation officer prepared a presentence report in which her on the allegation or a determination that no finding is
offense level was determined to be 21 – a level that was five necessary because the controverted matter will not be
above the one stipulated. The difference was due to a two- taken into account in, or will not affect, sentencing.”
level enhancement for production and trafficking of
unauthorized or counterfeit access devices, see U.S.S.G. This court “has required ‘literal compliance’ with [Rule
§ 2F1.1(b)(5)(B), and a three-level enhancement for 32(c)(1)], stating that it ‘helps to ensure that defendants are
commission of the instant offenses while released on bond in sentenced on the basis of accurate information and provides
connection with another federal offense, see U.S.S.G. § 2J1.7. a clear record for appellate courts, prison officials, and
The revised calculations yielded a guideline sentencing range administrative agencies who may later be involved in the
of 77 to 96 months. case.’” United States v. Corrado, 227 F.3d 528, 540 (6th Cir.
2000) (quoting United States v. Tackett, 113 F.3d 603, 613-14
Ms. Stovall presented 23 objections to the presentence (6th Cir. 1997), cert. denied, 522 U.S. 1089 (1998)). “Literal
report. She also requested downward departures based on the compliance” means that the district court must make
conditions of the jail in which she was detained and her independent factual findings and not merely adopt the
family history of schizophrenia. (On appeal, she characterizes findings in the presentence report. See id. at 540-41.
her departure requests as “objections” as well.)
Ms. Stovall contends that the district court violated Rule
Because of the discrepancy between the guideline sentence 32(c)(1) by summarily overruling four objections to the
range as calculated by the probation officer and the sentence presentence report: (1) her objection that because she had
agreed upon by the parties, the district court asked Ms. worked closely with only one of her co-defendants and had no
Stovall at sentencing whether she wished to renegotiate the knowledge of the others’ activities, her role in the conspiracy
plea agreement or to withdraw her guilty plea. After a recess, had been over-stated; (2) her objection to the enhancement of
the parties reported that they had agreed to amend the plea her offense level for commission of her offenses while
bargain by establishing a sentencing “cap” of 77 months. released on bond; (3) her objection to the assessment of
criminal history points for sentences imposed in earlier
Without discussion, the district court subsequently federal cases; and (4) her requests for a downward departure.
overruled Ms. Stovall’s outstanding objections to the In our view, Ms. Stovall’s objections did not raise
presentence report. Adopting the probation officer’s factual controverted matters of the type that Rule 32(c)(1) requires to
be resolved on the record.
No. 02-1210 United States v. Stovall 5 6 United States v. Stovall No. 02-1210
As to the complaint that the district court failed to make a Ms. Stovall complains next of the district court’s failure to
factual finding on her role in the conspiracy, Ms. Stovall justify its rejection of her requests for departure from the
stipulated in the plea agreement that a three-level guideline range. As we see it, however, Ms. Stovall’s
enhancement was appropriate because she was a manager or departure requests were not “objections to the presentence
supervisor. In light of that stipulation, there was no need for report” within the meaning of Rule 32(c)(1). The report, after
the district court to make a finding on the issue. See United all, merely set forth the requests without comment. It follows
States v. Dunbar, 9 Fed. Appx. 411, 414 (6th Cir. 2001), that the district court was not obligated to make express
where we held that an objection foreclosed by the defendant’s findings with respect to the requests. See United States v.
plea agreement did not constitute a “controverted matter” for Bowden, 4 Fed. Appx. 398, 399 (9th Cir. 2001) (rejecting an
purposes of Rule 32(c)(1). Likewise, the district court was argument that Rule 32(c)(1) requires explicit rulings on
not required to determine whether Ms. Stovall’s prior federal requests for downward departure).1
sentences should have been counted in the calculation of her
criminal history score – for Ms. Stovall had stipulated that a III
separate three-point addition was warranted by each of the
sentences in question. See Dunbar, 9 Fed. Appx. at 414. Finally, Ms. Stovall contends that a state sentence for
passing counterfeit checks should not have been used in the
Turning to Ms. Stovall’s contention that the district court calculation of her criminal history score, the passing of the
should have made a finding on her objection to the three-level checks already having been treated as part of the offense
enhancement for having committed the present offenses while conduct that resulted in a separately counted federal sentence.
released on bond, we note that Ms. Stovall never disputed the Ms. Stovall did not raise this argument in the district court.
fact that the period in which she committed her offenses On the contrary, she stipulated to the addition of two points
overlapped the period in which she was on bond. Given the to her criminal history score on account of the state sentence
overlap, enhancement of the sentence was mandated by 18 – and, to repeat, she expressly agreed not to appeal any of the
U.S.C. § 3147. See United States v. Lewis, 991 F.2d 322, 324 stipulated sentencing factors. Ms. Stovall thus waived her
(6th Cir. 1993). Section 2J1.7 of the sentencing guidelines right to appeal the two-point addition. See United States v.
“effectuate[s] the mandate” of § 3147 by prescribing a three- Allison, 59 F.3d 43, 46 (6th Cir.), cert. denied, 516 U.S. 1002level enhancement. United States v. Bahhur, 200 F.3d 917, (1995).
926-27 (6th Cir. 2000). Citing a notice requirement found in
U.S.S.G. § 2J1.7, comment. (backg’d), Ms. Stovall contends AFFIRMED.
that she did not receive sufficient notice that the enhancement
would be imposed. But the presentence report indisputably
notified Ms. Stovall that she stood to receive the
enhancement, and Ms. Stovall’s suggestion that she was
entitled to notice at the time of her release is contrary to our
decision in Lewis. See Lewis, 991 F.2d at 323-24. Because 1
To the extent that Ms. Stovall seeks to challenge the merits of the
application of the enhancement was required by statute, and district court’s refusal to depart downward, her challenge cannot be
because Ms. Stovall plainly received sufficient notice, there maintained on ap peal absen t evidence that the court was unaware of its
was no genuine controversy for the court to resolve. discretion to depart. See Un ited States v. H ill, 167 F.3d 1055, 1070-71
(6th C ir.), cert. denied, 528 U.S. 872 (1999). We find no such evidence
here.