                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-30-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1251




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Recommended Citation
"USA v. McCormick" (2007). 2007 Decisions. Paper 520.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/520


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 06-1251


                           UNITED STATES OF AMERICA

                                             v.

                               JAMES A. MCCORMICK,

                                                     Appellant.



                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D. C. No. 04-cr-00215)
                        District Judge: Hon. Gary L. Lancaster


                      Submitted under Third Circuit LAR 34.1(a)
                                  on May 18, 2007

                      Before: FISHER and ROTH, Circuit Judges
                               RAMBO*, District Judge

                           ( Opinion filed August 30, 2007)




                                     OPINION




      *Judge Sylvia H. Rambo, United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
ROTH, Circuit Judge:

       The issue presented in this appeal is whether the District Court complied with Rule

32(i)(3) of the Federal Rules of Criminal Procedure regarding objections raised by the

defendant James McCormick to his presentence report. McCormick alleges that the

District Court, in violation of Rule 32(i)(3), failed to resolve or expressly disclaim

reliance on facts in the presentence report that McCormick disputed. For the reasons set

forth below, we conclude that the District Court complied with Rule 32(i)(3), and we will

affirm its judgment of sentence.

I. Background and Procedural History

       On August 24, 2004, McCormick was charged with one count of bank robbery in

violation of 18 U.S.C. § 2113(a). On July 22, 2005, he entered a plea of nolo contendre

to this charge. Both McCormick and the government reviewed McCormick’s presentence

report, but only McCormick filed objections challenging certain portions of the report. At

the sentencing hearing, the District Court accepted only one of McCormick’s objections

which lowered his base offense level by three points. With that, and one other additional

finding,1 the District Court adopted the findings of the presentence report. Given

McCormick’s offense level and criminal history, his advisory guidelines sentence was 46

to 57 months. After taking into consideration the sentencing factors under 18 U.S.C. §




       1
       The District Court found that McCormick suffered from numerous physical,
emotional, and mental ailments in addition to his severe alcohol addiction.

                                              2
3553(a), the District Court imposed on McCormick a sentence of 46 months. McCormick

timely filed this appeal.

II. Jurisdiction and Standard of Review

         The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231.

This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

         In an appeal of the District Court’s alleged violation of Rule 32(i)(3), we grant

plenary review. United States v. Electrodyne Sys. Corp., 147 F.3d 250, 252 (3d Cir.

1998).

III. Analysis

         Rule 32(i)(3) states that, at sentencing, a court “must, for any disputed portion of

the presentence report or other controverted matter, rule on the dispute or determine that a

ruling is unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” Although Rule 32(i)(1) allows the

court to adopt any undisputed portion of the presentence report as a finding of fact, it

must make an express finding on a disputed fact or disclaim reliance upon a disputed fact

in sentencing a defendant. Electrodyne Sys. Corp., 147 F.3d at 255.

         Here, McCormick alleges that the objections he filed to the presentence report

raised factual disputes that were not expressly resolved or disclaimed by the District

Court. Although he filed a great number of objections to almost every paragraph of the

presentence report, as McCormick concedes, many of these do not raise any disputes of



                                                3
fact and need not have been addressed by the District Court. In its sentencing transcript,

the District Court specifically stated that “it adopted the findings of the presentence report

with just two modifications: (1) it would favorably grant a three-point reduction for

acceptance of responsibility and (2) McCormick had numerous ailments.” The court

determined, however, that in spite of these ailments it would give no additional departure.

We conclude from the above that the District Court resolved the objections, rejecting all

but two of them, and was not in violation of Rule 32(i)(3).

IV. Conclusion

       For the reasons set forth above, we will affirm the judgment of sentence.




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