                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 20 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-5252
                                                     (D.C. No. 97-CR-4-H)
    JACKIE LYNN MARTIN,                                  (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior
Circuit Judge.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Defendant Jackie Lynn Martin was indicted on one count of armed bank

robbery in violation of 18 U.S.C. § 2113(a) and (d); three counts of interference


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
with commerce by threats or violence in violation of 18 U.S.C. § 1951; two

counts of using a firearm during the commission of a crime of violence in

violation of 18 U.S.C. § 924(c); and two counts of possession of a firearm by

a convicted felon in violation of 18 U.S.C. § 922(g). A jury convicted defendant

on all eight counts of the indictment, and the district court sentenced him to fifty

years in prison.

       On direct appeal, we vacated defendant’s conviction and sentence on the

second § 922(g) charge, and we remanded the case to the district court “for

a hearing on Defendant’s competency to waive his right to counsel at sentencing,

and for possible resentencing if the district court finds Defendant competent to

waive that right.”   United States v. Martin , No. 98-5066, 2000 WL 33526, at **5

(10th Cir. Jan. 18, 2000) (unpublished),   cert. denied , 529 U.S. 1123 (2000).

On remand, the district court determined that defendant did not want to waive his

right to counsel. At defendant’s request, the district court therefore appointed

new counsel for defendant. Subsequently, the district court held a resentencing

hearing, and the court again sentenced defendant to fifty years in prison.

       Defendant is now seeking to have his sentence vacated on the grounds that:

(1) the probation officer did not provide him with a copy of the revised

presentence report at least thirty-five days before the resentencing hearing as

required by Fed. R. Crim. P. 32(b)(6)(A); and (2) the district court failed to verify


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at the resentencing hearing that defendant and his counsel had read and discussed

the revised presentence report as required by Rule 32(c)(3)(A). Our jurisdiction

arises under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm.


                                          I.

      Defendant claims that the district court’s failure to comply with Rule 32

deprived him of the opportunity to develop an argument for a downward

sentencing departure based on his post-arrest rehabilitative conduct. According to

defendant, the revised presentence report was inaccurate because it contained no

information concerning his post-arrest rehabilitative conduct. Defendant claims

that he would have objected to this omission and developed an argument for a

downward departure if he had been provided with a copy of the revised report.

Defendant therefore requests that his sentence be vacated and that this matter be

remanded for resentencing so that he can seek such a downward departure.

      We hold that defendant is not entitled to a remand for resentencing. As a

threshold matter, defendant does not affirmatively claim that he never received or

reviewed the revised presentence report prior to the resentencing hearing.

Instead, defendant only claims that the record “strongly suggests” that he did not

receive or review the revised report, and he has failed to directly dispute the

government’s claim that he reviewed the revised report with his counsel prior to



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the resentencing hearing. Nonetheless, even if we assume that defendant did not

receive or review the revised report, his challenge to his resentencing fails.

       Even if defendant establishes a violation of Rule 32, “[w]e will remand for

resentencing . . . only if defendant suffered prejudice as a result of the Rule 32

violation.” United States v. Archer , 70 F.3d 1149, 1151 (10th Cir. 1995) (citing

United States v. Rangel-Arreola    , 991 F.2d 1519, 1526 (10th Cir. 1993)). To

establish prejudice, defendant must show that: (1) the revised presentence report

contained factual inaccuracies; and (2) he could have successfully objected to the

report, and thereby received a shorter sentence, if he had been furnished with

a copy of the report as required by Rule 32.         See id. ; Rangel-Arreola , 991 F.2d

at 1526.

       Here, defendant’s claim is not that the revised report was inaccurate, but

that it was incomplete because it failed to detail his alleged post-arrest

rehabilitative conduct. In either case, however, defendant has failed to

demonstrate that he could have succeeded in convincing the district court to grant

him a downward departure based on his alleged post-arrest rehabilitative conduct,

and his conclusory allegations are insufficient to establish the prejudice necessary




                                               -4-
to justify a remand for resentencing.   1




                                            II.

       Defendant also claims that the district court’s failure to comply with

Rule 32 deprived him of the opportunity to inform the court that he was taking

medication that could adversely affect his judgment and/or render him

incompetent during the resentencing proceedings. According to defendant, the

revised presentence report was inaccurate because it contained no information

concerning his current medication and its side-effects. Defendant claims that he

would have objected to this omission and informed the court of the side-effects of

the medication if he had been provided with a copy of the revised report.

       Even if we accept that defendant was taking medication that could have

affected his judgment and/or rendered him incompetent at the time of his

resentencing, defendant has failed to explain why this fact would have led the

district court to impose a shorter sentence. Presumably, defendant’s argument is

that the district court would have postponed the resentencing hearing to a date


1
       In addition, while we have held that extraordinary or exceptional drug or
other rehabilitative efforts may provide the basis for a downward sentencing
departure in appropriate cases, see United States v. Whitaker , 152 F.3d 1238,
1239-40 (10th Cir. 1998), the departure can only be based on conduct that
occurred prior to a defendant’s initial sentencing,  see United States v. Warner ,
43 F.3d 1335, 1340 (10th Cir. 1994). Thus, even if defendant could overcome the
prejudice hurdle, he would not be entitled to a downward departure based on any
rehabilitative conduct that has occurred since his initial sentencing.

                                            -5-
when he was not impaired or incompetent if it had been aware of the medication

he was taking. Alternatively, defendant appears to claim that he would not have

waived his right to self-representation if he had not been taking any medication.

However, defendant has failed to demonstrate why either of these scenarios would

have ultimately resulted in the district court imposing a shorter sentence.

Accordingly, even if the district court failed to comply with Rule 32, defendant

has failed to establish the prejudice necessary to justify a remand for

resentencing.   See Archer, 70 F.3d at 1151; Rangel-Arreola , 991 F.2d at 1526.

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.



                                                     Entered for the Court


                                                     Stephen H. Anderson
                                                     Circuit Judge




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