                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2003

USA v. Rivera
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4119




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                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEAL
                            FOR THE THIRD CIRCUIT


                                      No. 02-4119


                           UNITED STATES OF AMERICA,

                                            v.

                                  JEFFREY RIVERA,

                                                 Appellant


                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                           (D.C. Criminal No. 01-cr-00385)
                       District Judge: Hon. Bruce W. Kauffman


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 September 16, 2003

               BEFORE: MC KEE, SMITH and COWEN, Circuit Judges

                                (Filed October 30, 2003 )


                                        OPINION


COWEN, Circuit Judge.

      Jeffrey Rivera appeals from the October 28, 2002 judgment of conviction and

sentence of the United States District Court for the Eastern District of Pennsylvania. We

will vacate and remand for resentencing.
                                                I.

        Rivera was born and raised in Puerto Rico and did not come to the continental

United States until 1996. He neither speaks nor understands much of the English

language and claims to be incapable of reading English. He required the assistance of an

interpreter in his various court proceedings.

        On July 11, 2001, a grand jury returned a three-count indictment against Rivera.

In Count I, Rivera was charged with conspiracy to distribute heroin and cocaine base in

violation of 21 U.S.C. § 846. Pursuant to a plea agreement, Rivera pled guilty on June

25, 2002 to the portion of this first count alleging conspiracy to distribute more than 1000

grams of heroin. The District Court dismissed the remaining charges at the October 24,

2002 sentencing hearing.

        The United States Probation Office submitted a presentence investigation report

(“PSI”). This PSI was initially prepared on August 27, 2002 and then revised on

September 17, 2002.1 It was written in English, and it appears that the document was

never translated into Spanish. According to the PSI, Rivera purchased heroin and then

sold this drug in the Bethlehem, Pennsylvania area where he resided. This activity

occurred between late 1998 and June 2000. Law enforcement agents were informed that

heroin was stored and packaged at the Bethlehem residence of Rivera’s mother. They

were also told that this heroin was occasionally “stored in the refrigeration or in the



   1
       The PSI incorrectly gave the date of this revision as September 17, 2001.

                                                2
bedroom of the defendant’s brother.” PSI ¶ 12. On June 9, 2000, the Pennsylvania State

Police discovered a package containing 96 grams of heroin at his mother’s home.

       Rivera was allocated seven criminal history points, placing him in criminal history

category IV. This calculation was based on three prior convictions. One point was

received for a June 22, 1998 retail theft conviction in Bethlehem. Rivera was arrested on

August 25, 1994 and found guilty of possession of a controlled substance by the Superior

Court of Puerto Rico in Bayamon on February 21, 1995. This conviction resulted in three

criminal history points. Finally, three points were based on two counts of illegal

appropriation contrary to article 18 of the Puerto Rico Vehicle Protection Law. The PSI

indicated that Sierra was arrested on February 23, 1993 and convicted on July 30, 1993 by

the Bayamon Superior Court. He was sentenced to five years imprisonment for the first

charge and a consecutive term of six months for the second charge. The category IV

criminal history, together with a total offense level of 31, resulted in a sentencing range of

151 to 181 months.2

       According to the PSI, Rivera’s mother, together with five maternal half-siblings

with ages between 13 and 17, have lived in Bethlehem. The report contained no mention

of the medical or mental condition of the mother and half-siblings and was silent as to any

assistance or support provided by Rivera to these relatives.



   2
    The PSI noted that the United States Probation Office for the District of Puerto Rico
submitted a request for official court documents relating to the two Puerto Rico
convictions.

                                              3
       Rivera appeared for sentencing on October 24, 2002. Rivera’s counsel, Assistant

Federal Defender Eric Vos, indicated that the defense has not submitted any additional

written materials. The District Court then said, “I understand, with regard to the

presentence report, that there is an objection about one of the past convictions.” App. at

22a. It then proceeded to a quite extensive examination of the defense objection to the

PSI’s inclusion of the 1993 Puerto Rico conviction. Shortly before imposing sentence,

the District Court asked the attorneys whether there were any other objections to the PSI.

The attorneys responded that there were none, and the District Court generally adopted

the PSI’s findings of fact.

       Without taking the 1993 conviction into consideration, Rivera would have a

criminal history category of III, leading to a reduced sentencing range of 135 to 168

months. Assistant United States Attorney Albert S. Glenn submitted a recently received

copy of the Puerto Rico court’s 1993 certified judgment of conviction. Vos continued to

challenge this 1993 conviction, noting that Rivera “holds fast to the position that that case

was ultimately dropped.” App. at 27a. He questioned how his client could have been

arrested in August 1994 when he was supposedly sentenced to five and a half years of

incarceration for the 1993 conviction. The defense admitted that such a course of events

could merely indicate that he was released from prison early and acknowledged that

Puerto Rico’s parole and release practices are not known. But Vos continued to assert

that this timing supports the conclusion that the 1993 conviction was somehow vacated.



                                             4
       Probation Officer Michael Pascarella then addressed the District Court regarding

the efforts of a United States probation officer in Puerto Rico to verify the 1993

conviction. Although Pascarella did not speak directly with him, this Puerto Rico officer

discussed this matter with staff in Allentown, Pennsylvania. It appears that this officer

obtained the judgment of conviction from the courthouse in Puerto Rico. This judgment

was the last official document concerning Rivera’s sentence in the court folder. This

judicial file contained no indication that the conviction was set aside or that the sentence

was reduced or suspended. Pascarella continued:

              [W]e do not know when the defendant was released, there are no
       records in the Probation Department or the Department of Corrections
       indicating when the defendant was released and it’s possible that after five
       years they could have been destroyed, we just don’t know that. But -- and
       the Probation officer from Puerto Rico also said that it is not an uncommon
       practice that even on a five-year sentence that defendants are released after
       serving a few months.

App. at 34a-35a. He further discussed Rivera’s apparently early release from

imprisonment:

       . . . But the representation to us is that the -- and actually, your Honor, I can
       be more specific - contact was made with the Probation Office, the
       Bayamon Probation Office and the Puerto Rico Corrections Department,
       who informed that -- what they’re saying is the defendant was not placed on
       probation or parole for any conviction, but that doesn’t mean that the
       conviction didn’t occur, it just doesn’t -- it means that he could have been
       sentenced and then immediately released, and that is -- that’s the
       representation that we received from the Probation officer over the phone
       that there is -- they just don’t know and that it’s not unusual for defendants
       to be sentenced to terms of incarceration and then to be released quickly.




                                              5
App. at 39a.3

       The District Court specifically asked Vos what further investigatory steps he could

undertake if the sentencing were to be continued. Rivera’s counsel noted the possibility

that no further information could be uncovered. Although believing “that we have

enough to go forward today,” he emphasized the negative consequences for his client if

he were incorrect. App. at 40a. He therefore suggested that Spanish-speaking

investigators at his office further look into the 1993 conviction. This would give the

defense “a chance to go back and either confirm that which seems to be confirmed today

or to dig something up that shows that we’re wrong.” App. at 40a-41a. He subsequently

stated that the District Court could render “an educated decision” on the basis of the

current record. App. at 58a.

       The District Court eventually concluded that the preponderance of the evidence

supports the PSI’s criminal history determination. In imposing a 151-month term of

incarceration, it stated:

       I’d like the record to reflect that that is a sentence that I would have
       imposed even had I determined that the criminal history category should be
       3, I have determined that it should be 4 because of what I just stated, that
       the preponderance of the evidence establishes that the three points that were
       in dispute should be included in the calculation and, therefore, we have a
       criminal history category of 4.

App. at 59a.

   3
     The government also introduced a computerized criminal history record from the
United States Probation Office in Puerto Rico. 56a-57a. This document appeared “to be
consistent with the presentence report.” App. at 58a.

                                             6
       The defense also made an oral motion at the sentencing hearing for downward

departure on the basis of family circumstances. Vos explained the untimeliness of this

motion:

       . . . I was recently notified by the defendant that he had a sick parent and
       two sick relatives, his brother and sister. I have learned through Carmen
       Herrera, because she actually found out before I did, I was not the original
       attorney on this, and by the witnesses that came today that my client’s
       mother suffers from severe mental illness and she is the sole caretaker for
       two children who suffer from autism, and actually the agent here today
       helped confirm that, he knew that also, I did not know that.

App. at 30a.

       Rivera’s father-in-law, Miguel Nieves, testified on his behalf. He stated that

Rivera’s mother is “a very sick lady” who has a nervous problem and two disabled

children. App. at 49a. According to Nieves, “anybody who sees [the children] will

realize that they are sick.” App. at 49a. The defense counsel asked whether he had heard

of the children’s autism. Nieves answered in the affirmative because of the government

assistance received for their benefit. The father-in-law indicated that Rivera was always

very concerned about his mother and disabled siblings. When asked whether his son-in-

law provided financial or physical support, Nieves testified that he purchased furniture for

them, which the disabled children would break “in a couple of months.” App. at 50a. He

claimed that he sometimes went with Rivera on his visits to help these relatives. On

cross-examination, the witness admitted that he was unaware of the mother’s name and

did not know whether Rivera assisted with the rent payments. He did “know that in



                                             7
several occasions, two or three occasions, [Rivera] would help [his mother] with the

money for food, for furniture, and so on.” App. at 51a. According to Nieves, this

assistance was provided when Rivera was not incarcerated.

       Rivera also provided a brief account of his mother’s alleged plight:

       I believe that truly my mother has a lot of mental problems. She doesn’t
       know how to pay the rent, she doesn’t know how to pay the bills. She has
       lost three apartments already. I don’t know if she’s at a shelter at the
       moment.

App. at 53a. He stated that she was evicted from at least two apartments because of the

behavior of his siblings.

       The District Court denied this motion to depart. Although acknowledging the

authority to depart and expressing sympathy, it held that the evidence was not sufficient

to satisfy the very high standard for departure. Rivera also still faced a statutory

mandatory minimum of ten years. According to the District Court, Rivera’s family would

therefore be required to seek other assistance even if it departed to this mandatory

minimum sentence of 120 months. The District Court accordingly imposed a sentence of

151 months imprisonment, five years of supervised release, a $1000.00 fine, and a special

assessment of $100.00. Rivera appealed.

                                              II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Rivera argues

that the District Court committed prejudicial error by failing to verify that he had read and

discussed the PSI with his attorney. Because this issue was not brought to the attention of

                                              8
the District Court, Rivera must satisfy the plain error standard of review. See, e.g.,

United States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000). A defendant must

demonstrate that “(1) an error was committed; (2) the error was plain; and (3) the error

affected [the defendant’s] substantial rights.” Id. (citing United States v. Olano, 507 U.S.

725, 732-34 (1993)). Even if these elements are satisfied, an appellate court is still not

required to order correction. Id. (citing Olano, 507 U.S. at 734). Such a correction

should be ordered “only if the error ‘seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings.’” Id. (quoting Olano, 507 U.S. at 242).

        It is well-established that the district court bears the obligation to ensure that the

defendant and his or her attorney have read and talked about the presentence report. At

the time of sentencing, Federal Rule of Criminal Procedure 32(c)(3)(A) required the court

to “verify that the defendant and defendant’s counsel have read and discussed the

presentence report.” 4 We have refused to view this provision as mandating that the

district court specifically ask the defendant if he had the opportunity to read and discuss

this report with his or her lawyer. Stevens, 223 F.3d at 241; United States v. Mays, 798

F.2d 78, 80 (3d Cir. 1986). This Court has adopted a more functional standard, “requiring

only that the district court ‘somehow determine that the defendant has had this

opportunity.’” Stevens, 223 F.3d at 241 (quoting Mays, 798 F.2d at 80).




   4
       This mandate now appears as Federal Rule of Criminal Procedure 32(i)(1)(a).

                                                9
       The able district judge clearly did not satisfy this standard. The District Court

never specifically inquired whether Rivera had read the PSI and discussed this document

with his lawyer. The record lacks any functional equivalent to such a direct colloquy.

The PSI itself was never translated into Spanish even though Rivera is apparently unable

to read English. The government does not point to any statement by either the defense

counsel or his client indicating that Rivera had the opportunity to read and talk about the

PSI. See Mays, 798 F.2d at 80 (holding that defense counsel’s reference to reading the

presentence report with defendant satisfied verification standard). The District Court did

note Rivera’s objection to the PSI’s inclusion of the 1993 Puerto Rico conviction and

fully considered his motion for downward departure on the basis of extraordinary family

ties and responsibilities. The District Court further asked whether there were any

additional objections to this PSI, and Vos indicated there were none. Such general

statements, however, are not sufficient to satisfy the verification requirement. Stevens,

223 F.3d at 242 (finding that district court’s inquiry as to “any requests for additions or

corrections to the presentence” report was insufficient). The government accordingly

concedes that the District Court erred.

       Rivera must still demonstrate that this plain error affected his substantial rights.

We have held that the failure to satisfy the verification requirement does not mandate

resentencing unless the defendant demonstrates that this error resulted in prejudice. See,

e.g., Stevens, 223 F.3d at 242-43. The error “‘must have affected the outcome of the



                                             10
district court proceedings.’” Id. at 242 (quoting Olano, 507 U.S. at 734)). The

government correctly points out that Rivera was not prejudiced merely because the

District Court adopted the PSI’s calculation of a category IV criminal history. According

to the District Court, the same term of 151 months would have been imposed even if it

agreed with Rivera that the 1993 Puerto Rico conviction had been vacated and the lower

but overlapping sentencing range under criminal history category III thereby applied. It

also appears highly unlikely that Rivera would have been able to present sufficient

evidence of family circumstances to justify a downward departure even if he had been

given the opportunity to review the PSI before sentencing. But we agree with Rivera that,

considering these two aspects together, the District Court committed a prejudicial error in

failing to ensure that he had read the PSI and discussed its contents with his lawyer.

       If Rivera had the chance to review the PSI, a more developed challenge to its

inclusion of the 1993 Puerto Rico conviction could have persuaded the District Court that

this conviction had been either dismissed or otherwise vacated. According to the

government, Rivera would likely be unable to produce records supporting his claim of

dismissal. A copy of the certified judgment of conviction was submitted, and the

probation officer in Puerto Rico apparently could find no indication that this conviction

was somehow set aside. The status of this earlier conviction, however, clearly presented a

difficult question for the District Court. Rivera was arrested on August 25, 1994 even

though he had been sentenced on July 30, 1993 to an overall term of five and one half



                                            11
years. Even though he apparently served only a fraction of this sentence, the Bayamon

Probation Office and the Puerto Rico Corrections Department indicated that Rivera was

never paroled or placed on probation. Although the probation officer from Puerto Rico

noted the possibility of an immediate release and the destruction of relevant papers,

additional evidence, possibly obtained by Spanish-speaking investigators from the

defender’s office, could further clarify this issue.

       The exclusion of the 1993 conviction would result in a criminal history category of

III and a lower sentencing range of 135 to 168 months. The PSI lacked any reference to

the condition of Rivera’s mentally ill mother and autistic half-siblings as well as any

mention of the assistance provided by Rivera to these relatives. The defense did make a

last-minute departure motion based on extraordinary family ties and responsibilities, but

he could have presented a fuller account of these family circumstances if he had been

given an opportunity to review and discuss these omissions from the PSI. Rivera could

have received a lesser term within the category III sentencing range if he submitted a

more fully documented and detailed account of the needs of his mother and her children

and his efforts to help them.

       The District Court accordingly committed prejudicial error, affecting the overall

fairness of the sentencing proceeding, by failing to satisfy its verification duty under Rule

32. We will vacate the District Court’s judgment and remand this matter for

resentencing. Rivera is to be accorded an opportunity to present a fully developed



                                              12
challenge to the PSI’s inclusion of the 1993 Puerto Rico conviction. He also may submit

any further evidence of his family circumstances in an attempt to justify a sentence of less

than 151 months under the lower sentencing range that applies when the 1993 conviction

is excluded from the criminal history calculation. The District Court may certainly decide

to impose the same sentence as before on the grounds that the 1993 conviction remains

valid and the 151-month term of imprisonment therefore constitutes the lowest possible

sentence under the applicable category IV range or that his family circumstances do not

justify a lesser sentence even under the sentencing range for criminal history category III.

                                              III.

       For the foregoing reasons, the judgment of the District Court entered on October,

28, 2002 will be vacated. This matter will be remanded to the District Court for

resentencing consistent with this opinion.




TO THE CLERK:

       Please file the foregoing opinion.




                                             /s/ Robert E. Cowen
                                             United States Circuit Judge




                                               13
