     Case: 12-10363       Document: 00512218037         Page: 1     Date Filed: 04/23/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           April 23, 2013
                                     No. 12-10363
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

QUENTIN STEVAUGHAN PENDLETON,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:11-CR-57-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Quentin Stevaughan Pendleton pleaded guilty to possession of a firearm
by a felon in violation of 18 U.S.C. § 922(g). Along with the presentence report
(PSR), the probation officer’s confidential sentencing recommendation was
disclosed to the parties inadvertently. Pursuant to a court order, Pendleton
returned the recommendation. That same day, he filed a response challenging
the probation officer’s recommendation of a sentence at the top of the range,
asserting that the probation officer improperly relied on his rehabilitative needs

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-10363     Document: 00512218037      Page: 2   Date Filed: 04/23/2013

                                  No. 12-10363

and his arrest record. He also challenged the validity of Rule 32.1 of the Local
Criminal Rules of the Northern District of Texas (Local Rule 32.1), which
prohibits disclosures of sentencing recommendations.          The district court
sentenced Pendleton to 85 months in prison, within the guidelines range of 77
to 96 months, to be followed by three years of supervised release.
      On appeal, Pendleton renews his challenges to his sentence, arguing that
Local Rule 32.1 violated his right to due process and his right to effective
assistance of counsel at sentencing, as well as his rights under Rule 32 of the
Federal Rules of Criminal Procedure. He asks that this court remand for
resentencing in his case and that we declare Local Rule 32.1 unconstitutional
and in conflict with Rule 32(i)(1)(C). Our review is de novo. See Sixta v. Thaler,
615 F.3d 569, 571 (5th Cir. 2010).
      Rule 32 of the Federal Rules of Criminal Procedure provides for
preparation of a PSR and disclosure of that report. FED. R. CRIM. P. 32(d), (e)(2).
Rule 32(i)(1)(C) requires a court to permit the “parties’ attorneys to comment on
the probation officer’s determinations and other matters relating to an
appropriate sentence.” Further, a defendant has a due process right to review
and object to a PSR. United States v. Jackson, 453 F.3d 302, 305-06 (5th Cir.
2006). However, a court may, by local rule or by order in a case, “direct the
probation officer not to disclose to anyone other than the court the officer’s
recommendation on the sentence.” FED. R. CRIM. P. 32(e)(3). The Northern
District of Texas has adopted such a rule. N.D. TEX. CRIM. R. 32.1.
      We have not previously addressed in a published opinion whether a
blanket prohibition on disclosure is unconstitutional or in conflict with Rule
32(i)(1)(C), and we need not decide those questions now. As Pendleton readily
admits, due to the inadvertent disclosure, he was able to challenge the probation
officer’s purported reliance on improper factors and to offer evidence and
arguments to counter the recommendation of a sentence at the top of the range.
As he states in his brief, his “efforts resulted in a sentence 11 months lower than

                                        2
    Case: 12-10363     Document: 00512218037     Page: 3   Date Filed: 04/23/2013

                                  No. 12-10363
the sentence recommended by the probation officer.”         Although Pendleton
complains that the district court ordered him to return the recommendation and
any copies, he does not explain how that affected his ability to formulate a
response to the recommendation during the nearly two weeks the
recommendation was in his counsel’s possession. In short, Pendleton had the
very opportunity to review and comment on the additional information in the
sentencing recommendation that he asserts is required by Rule 32 and the Due
Process Clause. He likewise does not show how the rule resulted in the denial
of his Sixth Amendment right to effective assistance of counsel. See May v.
Collins, 948 F.2d 162, 166-67 (5th Cir. 1991).
      To the extent that Pendleton raises a distinct challenge to the
consideration of his rehabilitative needs and his arrest record, his arguments
fail. We see nothing in the court’s statements at sentencing that suggest any
improper reliance on rehabilitative needs. See Tapia v. United States, 131 S. Ct.
2382, 2385 (2011); United States v. Recesky, 699 F.3d 807, 811-12 (5th Cir. 2012).
We also discern no improper reliance on Pendleton’s arrest record. Cf. United
States v. Johnson, 648 F.3d 273, 277-78 (5th Cir. 2011). To the contrary, the
court made no mention of his arrest record except when it sustained an objection
to a PSR addendum regarding his criminal history and arrests and stated that
the court would not consider the additional information.
      Pendleton also makes a broader request that we declare Local Rule 32.1
unconstitutional and in conflict with Rule 32(i)(1)(C), citing potential injury to
other defendants. We agree with the Government that Pendleton lacks standing
to raise this challenge. See Rivera v. Wyeth-Ayerst Laboratories, 283 F.3d 315,
320 (5th Cir. 2002).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




                                        3
