           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2    United States v. Espalin                    No. 02-5546
        ELECTRONIC CITATION: 2003 FED App. 0422P (6th Cir.)
                    File Name: 03a0422p.06                             Appellant. Timothy R. DiScenza, ASSISTANT UNITED
                                                                       STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                                                                       ON BRIEF: J. Patten Brown, III, OFFICE OF THE
UNITED STATES COURT OF APPEALS                                         FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
                                                                       Appellant. Timothy R. DiScenza, ASSISTANT UNITED
                  FOR THE SIXTH CIRCUIT                                STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                    _________________
                                                                         GUY, J., delivered the opinion of the court, in which
 UNITED STATES OF AMERICA         X                                    DAUGHTREY, J., joined. LAWSON, D. J. (pp. 4-15),
             Plaintiff-Appellee, -                                     delivered a separate concurring opinion.
                                   -
                                   -  No. 02-5546                                          _________________
            v.                     -
                                    >                                                          OPINION
                                   ,                                                       _________________
 STEPHEN ESPALIN ,                 -
          Defendant-Appellant. -                                         RALPH B. GUY, JR., Circuit Judge. Defendant, Stephen
                                  N                                    Espalin, entered a guilty plea to an information charging him
       Appeal from the United States District Court                    with threatening the President of the United States in
    for the Western District of Tennessee at Memphis.                  violation of 18 U.S.C. § 871. The trial judge imposed a
     No. 02-20003—Julia S. Gibbons, Circuit Judge.                     sentence of 18 months’ imprisonment to be followed by two
                                                                       years of supervised release. No objections were raised prior
                  Argued: September 9, 2003                            to sentencing concerning either the applicability of the
                                                                       guidelines applied or the sentencing range. Defendant filed
             Decided and Filed: December 3, 2003                       a motion for a downward departure, which was denied.

    Before: GUY and DAUGHTREY, Circuit Judges;                           Espalin now appeals claiming the court erred in not
              LAWSON, District Judge.*                                 granting his motion for a downward departure. No claim is
                                                                       made that the trial judge was unaware of her authority to grant
                      _________________                                a downward departure. Because we have no jurisdiction to
                                                                       consider an appeal from the denial of a downward departure
                           COUNSEL                                     under these circumstances, we affirm.

ARGUED: M. Dianne Smothers, OFFICE OF THE                                                            I.
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
                                                                         We have repeatedly held, as have all other circuits, that
                                                                       where a sentence is not imposed in violation of law or is not
                                                                       the result of an incorrect application of the guidelines, the
    *
     The Honorable David M. Lawson, United States District Judge for   refusal of the trial judge to grant a downward departure is not
the Eastern District of Michigan, sitting by designation.

                                 1
No. 02-5546                    United States v. Espalin      3    4      United States v. Espalin                  No. 02-5546

an issue cognizable on appeal. United States v. Byrd, 53 F.3d                          _________________
144, 145 (6th Cir. 1995). The defendant acknowledges as
much, but attempts to avoid this result by arguing that the                             CONCURRENCE
probation officer overstepped her bounds in preparing the                              _________________
presentence report and became an advocate arguing against
the granting of the requested downward departure.                   DAVID M. LAWSON, District Judge (concurring). I agree
                                                                  with the majority’s conclusion that the denial of a downward
   Our review of the sentencing hearing, as well as the           departure motion by a sentencing judge who acknowledges
probation report itself, convinces us that no impropriety         her authority to depart is beyond our power to review. See
occurred. More importantly, even if we were to hold that the      United States v. Taylor, 286 F.3d 303, 305 (6th Cir. 2002). I
probation officer overstepped her bounds, the result would not    also fully concur with the holding that the probation officer’s
change. The trial judge is a very experienced jurist, and there   statements in the presentence report and its addendum did not
is no indication that she abdicated her decisional role by        violate any of the defendant’s substantial rights. Whatever
merely rubber-stamping the recommendation of the probation        the propriety of the comments in a presentence report, it
officer. Judge Lawson in his concurrence thoughtfully sets        would be a rare case indeed where a probation officer’s
forth the proper role of the probation officer; however, in the   rhetoric could overwhelm the independent judgment of a
last analysis the trial judge is the filter between the           sentencing court. I write separately, however, to express my
recommendation of the probation officer and the sentence          views on the subject of the proper role of a presentence
actually imposed. Appellate relief would be available only if     investigator under the Sentence Reform Act of 1984 and the
improper actions of a probation officer resulted in the trial     Federal Rules of Criminal Procedure, from the point of view
judge making a reviewable sentencing error of a type              of a district court judge sitting on this court by designation.
requiring reversal or remand.
                                                                                                 I.
  The defendant also devotes a good portion of his brief to a
polemic against the sentencing guidelines and the lack of            After the defendant pleaded guilty to threatening the
sentencing discretion that remains with a federal trial judge.    President of the United States, a United States Probation
Although many federal judges might echo these sentiments,         Officer prepared a presentence report (PSR) calculating a total
they are addressed to the wrong audience. Congress                offense level of 6, and a criminal history category of VI,
established the guideline system, and only Congress can           yielding a guideline range of 12 to 18 months. The
change that system.                                               statutorily-authorized maximum sentence for the offense is
                                                                  five years. 18 U.S.C. § 871. The probation officer included
  AFFIRMED.                                                       language in the PSR commenting on “factors that may
                                                                  warrant departure,” stating:
                                                                      Pursuant to § 4A1.3, “If reliable information indicates
                                                                      that the criminal history category does not adequately
                                                                      reflect the seriousness of the defendant’s past criminal
                                                                      conduct or the likelihood that the defendant will commit
                                                                      other crimes, the court may consider imposing a sentence
No. 02-5546                    United States v. Espalin         5   6      United States v. Espalin                    No. 02-5546

  departing from the otherwise applicable guideline range.”           In response to the motion, the probation officer
  The defendant has 27 criminal history points. The Court           supplemented the PSR with an addendum that contained the
  may establish that Criminal History Category VI does              following language:
  not adequately reflect the seriousness of the defendant’s
  criminal history given the nature of the prior offenses.              Section 5K2.13, Diminished Capacity, allows for a
  Since at least 1975, the defendant has consistently been              sentence below the guideline range if the defendant
  arrested for crimes involving fraud, manipulation, and                committed the offense while suffering from a
  deceit in order to avoid a law-abiding lifestyle. There is            significantly reduced mental capacity. Application Note
  a strong likelihood that the defendant will continue this             1 to § 5K2.13 states that “significantly reduced mental
  pattern and victimize more individuals.                               capacity” means that the defendant has a significantly
                                                                        impaired ability to understand the wrongfulness of the
J.A. at 75.                                                             behavior comprising the offense or an impaired ability to
                                                                        control behavior that the defendant knows is wrongful.
   The defendant filed objections to this section, contending
that the probation officer failed to recognize that the                 Section 5K2.13 also states that the Court may not
defendant is entitled to a downward departure for diminished            (emphasis added) depart below the guideline range if the
capacity and that this was an “obvious” factor the probation            defendant’s criminal history indicates a need to
officer missed. The defendant also called into question the             incarcerate the defendant to protect the public. The
probation officer’s “objectivity” and requested that the                defendant has accumulated a total of 27 criminal history
probation officer “not be allowed any ex parte communication            points. He has two previous convictions for sexual
with the court.” J.A. at 10. In addition, he filed a motion for         offenses, as well as numerous convictions for theft and
a downward departure on the basis of USSG § 5K2.13, which               fraud. A psychological evaluation was conducted by
states:                                                                 Emily Fallis, Ph.D. in September 2001. In her
                                                                        evaluation, Dr. Fallis stated, “Mr. Espalin acknowledged
  A sentence below the applicable guideline range may be                a lifestyle of conning others, particularly young men, and
  warranted if the defendant committed the offense while                fraudulent behavior beyond his criminal record for the
  suffering from a significantly reduced mental capacity.               past several years.” Examples of such behavior include
  However, the court may not depart below the applicable                taking long bus trips and staying in hotels without
  guideline range if (1) the significantly reduced mental               paying. In addition, the defendant “confessed he
  capacity was caused by the voluntary use of drugs or                  ‘conned’ the man he allegedly tried to frame in the
  other intoxicants; (2) the facts and circumstances of the             current case (Julian) ‘out of a lot of money.’ He added
  defendant’s offense indicate a need to protect the public             that he twice attempted to steal Julian’s car as well.” The
  because the offense involved actual violence or a serious             defendant’s criminal convictions and examples of
  threat of violence; or (3) the defendant’s criminal history           uncharged fraudulent behavior provided to Dr. Ellis are
  indicates a need to incarcerate the defendant to protect              evidence of the defendant’s extensive history of
  the public. If a departure is warranted, the extent of the            victimization of others. Based on the defendant’s pattern
  departure should reflect the extent to which the reduced              of criminal activity, it is likely that the defendant will
  mental capacity contributed to the commission of the                  continue to engage in criminal behavior.
  offense.
No. 02-5546                      United States v. Espalin       7    8      United States v. Espalin                     No. 02-5546

  In addition, the psychological evaluation conducted by                                             II.
  Dr. Fallis does not indicate that the defendant has a
  significantly reduced mental capacity. She diagnosed the             The proper content of a PSR is prescribed by Federal Rule
  defendant with Malingering and Borderline Personality              of Criminal Procedure 32(b), which in its form at the time of
  Disorder. According to Dr. Fallis, “a personality                  the defendant’s sentencing stated:
  disorder refers to a pattern of inner experience and
  behaviors present since youth which leads to social or                 (4) Contents of the Presentence Report. The presentence
  occupational impairment or to both sorts of impairments.                 report must contain–
  This enduring pattern is inflexible and pervasive.” There                (A) information about the defendant’s history and
  is no evidence to suggest that the personality disorder                  characteristics, including any prior criminal record,
  contributed to diminished capacity. During the study                     financial condition, and any circumstances that,
  period, the defendant also admitted to Dr. Fallis that he                because they affect the defendant’s behavior, may be
  was “80 per cent” regretful that he did not recant his                   helpful in imposing sentence or in correctional treatment;
  threat to harm President Bush. He stated that a part of                  (B) the classification of the offense and of the
  him wants to continue making the threats because he                      defendant under the categories established by the
  enjoys the attention that he is getting.                                 Sentencing Commission under 28 U.S.C. § 994(a),
                                                                           as the probation officer believes to be applicable to
  During an interview with the probation officer, Espalin                  the defendant’s case; the kinds of sentence and the
  stated that he told the police that his friend was making                sentencing range suggested for such a category of
  bombs because he was angry at the friend for ending an                   offense committed by such a category of defendant
  affair. He also admitted that he threatened the President                as set forth in the guidelines issued by the
  because he was mad. It appears that the defendant acted                  Sentencing Commission under 28 U.S.C.
  on his anger without considering the consequences of his                 § 994(a)(1); and the probation officer’s explanation
  behavior; however, this does not indicate a significantly                of any factors that may suggest a different sentence-
  reduced mental capacity.                                                 -within or without the applicable guideline-- that
                                                                           would be more appropriate, given all the
J.A. 124-25.                                                               circumstances;
                                                                           (C) a reference to any pertinent policy statement
   The defendant objected to this commentary below, and now                issued by the Sentencing Commission under 28
argues on appeal that the probation officer’s comments are                 U.S.C. § 994(a)(2);
improper because they constitute advocacy, whereas the                     (D) verified information, stated in a
proper role of a probation officer, according to the defendant,            nonargumentative style, containing an assessment of
is to serve as a dispassionate reporter of facts in the service of         the financial, social, psychological, and medical
the sentencing court.                                                      impact on any individual against whom the offense
                                                                           has been committed;
                                                                           (E) in appropriate cases, information about the
                                                                           nature and extent of nonprison programs and
                                                                           resources available for the defendant;
                                                                           (F) in appropriate cases, information sufficient for
No. 02-5546                    United States v. Espalin      9   10    United States v. Espalin                    No. 02-5546

   the court to enter an order of restitution;                        the grounds for those objections, and the probation
   (G) any report and recommendation resulting from                   officer’s comments on the objections. At the same
   a study ordered by the court under 18 U.S.C.                       time, the probation officer must furnish the revisions
   § 3552(b); and                                                     of the presentence report and the addendum to the
   (H) any other information required by the court.                   defendant, the defendant's counsel, and the attorney
 (5) Exclusions. The presentence report must exclude:                 for the Government.
   (A) any diagnostic opinions that, if disclosed, might              (D) Except for any unresolved objection under
   seriously disrupt a program of rehabilitation;                     subdivision (b)(6)(B), the court may, at the hearing,
   (B) sources of information obtained upon a promise                 accept the presentence report as its findings of fact.
   of confidentiality; or                                             For good cause shown, the court may allow a new
   (C) any other information that, if disclosed, might                objection to be raised at any time before imposing
   result in harm, physical or otherwise, to the                      sentence.
   defendant or other persons.
 (6) Disclosure and Objections.                                  Fed. R. Crim. P. 32(b) (2000) (emphasis added).
   (A) Not less than 35 days before the sentencing
   hearing--unless the defendant waives this minimum               The tasks of the probation officer under the Rule include
   period--the probation officer must furnish the                gathering information (e.g., the defendant’s “history and
   presentence report to the defendant, the defendant's          characteristics”), expressing opinions (stating “the
   counsel, and the attorney for the Government. The             classification of the offense and of the defendant . . . as the
   court may, by local rule or in individual cases, direct       probation officer believes to be applicable”), making
   that the probation officer not disclose the probation         judgments (“explain[ing] . . . factors that may suggest a
   officer’s recommendation, if any, on the sentence.            different sentence . . . that would be more appropriate”),
   (B) Within 14 days after receiving the presentence            reporting on the crime’s impact on the victim, mediating
   report, the parties shall communicate in writing to           disputes that arise as a result of the draft PSR, and
   the probation officer, and to each other, any                 commenting on unresolved objections. The Rule demands
   objections to any material information, sentencing            that some of these functions be carried out in a neutral
   classifications, sentencing guideline ranges, and             manner; for example, facts relating to victim impact must be
   policy statements contained in or omitted from the            reported in “a nonargumentative style.” Fed. R. Crim. P.
   presentence report. After receiving objections, the           32(b)(4)(D) (2000). However, by their nature, other duties
   probation officer may meet with the defendant, the            necessarily require the probation officer to stake out and
   defendant’s counsel, and the attorney for the                 defend a position.
   Government to discuss those objections. The
   probation officer may also conduct a further                    It has been suggested that when the probation officer’s
   investigation and revise the presentence report as            conclusion on a matter that affects the guideline range differs
   appropriate.                                                  from a position taken by the government or, as here, the
   (C) Not later than 7 days before the sentencing               defendant, the probation officer thereby assumes the role of
   hearing, the probation officer must submit the                an advocate. See United States v. Johnson, 935 F.2d 47, 49
   presentence report to the court, together with an             (4th Cir. 1991). Indeed, the role of the probation officer has
   addendum setting forth any unresolved objections,             changed substantially in the post-Sentencing Guideline era.
No. 02-5546                    United States v. Espalin     11    12    United States v. Espalin                     No. 02-5546

See Sharon M. Brunzel, The Probation Officer and the              report during a presentence conference with the court, a
Federal Sentencing Guidelines: Strange Philosophical              probation officer should continue to be a neutral, information-
Bedfellows, 104 Yale L.J. 933, 945, 962 (Jan. 1994) (positing     gathering agent of the court, not an agent of the prosecution);
that the pre-Guideline probation officer served as “the court’s   United States v. Rogers, 921 F.2d 975, 980 (10th Cir. 1990)
‘eyes and ears,’ a neutral information gatherer with loyalties    (stating that the probation officer acts as an agent of the court
to no one but the court,” whereas the Sentencing Guidelines       for the purpose of gathering and classifying information and
have increased the probation officer’s “decision-making           informing the court in the exercise of its sentencing
responsibilities” directly relating to guideline range            responsibility). That requirement ought not impair probation
calculations and have thrust the officer into “the business of    officers’ effectiveness or compromise their independence.
lawyering”). Decisions that predate the implementation of the     See United States v. Woods, 907 F.2d 1540, 1543-44 (5th Cir.
Sentencing Guidelines assume the absence of the probation         1990) (rejecting the defendant’s claim on appeal that a
officer’s allegiance to one side or the other as a fundamental    probation officer acted in a prosecutorial capacity because he
premise that permits the acquisition and transmission of          recommended a higher quantity of drugs than that to which
information to the sentencing judge in a way that is removed      the prosecutor had stipulated, the court instead finding that
from the adversarial system yet is consistent with due process.   the probation officer’s action demonstrated his “independence
See, e.g., Williams v. New York, 337 U.S. 241, 249-50 (1949)      of the prosecution and his obligation to recommend what he
(holding that “modern” practice of acquiring sentencing           believes to be a correct sentence to the court”); United States
information through probation agents does not offend the          v. Belgard, 894 F.2d 1092, 1098-99 (9th Cir. 1990) (holding
Confrontation Clause, and observing that “most of the             (1) that the role of probation officers under the Sentencing
information now relied upon by judges to guide them in the        Reform Act in investigating offenses for sentencing purposes
intelligent imposition of sentences would be unavailable if       did not violate separation of powers principles; (2) the
information were restricted to that given in open court by        probation officer’s performance of her investigation and
witnesses subject to cross-examination”); United States v.        recommendation functions did not violate due process,
Story, 716 F.2d 1088, 1090 (6th Cir. 1983) (holding that a        despite the defendant’s contention that the probation officer
sentencing court may hold ex parte conferences with a             performed judicial decision-making functions that resulted in
probation officer). Despite their new, guideline-imposed role,    a deprivation of his right to be heard; and (3) the probation
however, the probation officers’ obligation to remain neutral     officer’s presentence report to the court did not bias the court
has not shifted. That does not mean, however, that probation      so that it would be unable to sit as a neutral fact finder and
officers should not advance a position and provide a              render an impartial sentencing decision). Rather, the
dispassionate rendition of the facts in support of their          neutrality requirement merely reaffirms the principle that the
conclusion. Indeed, the obligations imposed on them by Rule       probation officer has no fealty to either side, but remains
32 and the Sentencing Guidelines require at least that much.      accountable to the court for accurately reporting the facts and
                                                                  the legal conclusions that fairly flow from them in order to
  Other Circuits that have considered the question have           assist the court in discharging its sentencing responsibilities.
endorsed the requirement that probation officers must remain      See United States v. Jackson, 886 F.2d 838, 844 (7th Cir.
as unbiased operators under the Sentencing Guidelines,            1989) (holding that, “[n]otwithstanding the reduced discretion
unaligned with either side. See Johnson, 935 F.2d at 49-50        now afforded district judges under the Sentencing Guidelines,
(holding that throughout the process of interviewing a            the duty and responsibility for imposition of sentence has not
defendant, preparing a presentence report, and discussing the     shifted from district judges to probation officers”).
No. 02-5546                    United States v. Espalin     13    14   United States v. Espalin                    No. 02-5546

  The defendant cites United States v. Sifuentez, 30 F.3d 1047    embroiled in a sentencing issue, just as there are cases in
(9th Cir. 1994), in support of his claim that the probation       which a judge’s impartiality could be questioned. In those
officer acted improperly in this case. In that case, the          instances, the probation officer’s service to the court would
probation officer responded to the defendant’s argument that      not be helpful, since there would be reason to doubt the
he was entitled to a downward departure from the sentencing       quality of the information coming to the court on which
guidelines by writing an addendum to the PSR, which stated:       sentencing decisions are based. When a probation officer
                                                                  deliberately omits or mischaracterizes relevant facts, or
  Defendant’s count of conviction . . . reveals that              intentionally misstates the law, or has an interest in the
  defendant possessed drugs while in prison. It is our            outcome of the case or some other conflict of interest, there
  opinion that defendant’s possession of drugs in prison          likely would be a basis to question the probation officer’s
  jeopardized the safety and security of the institutional        objectivity. Similarly, if the probation officer excludes or
  staff and inmates . . . . Defense counsel also contends         ignores competing arguments, he or she would not be doing
  that the mandatory sentence of 120 months for                   the job expected by the sentencing court. But even then, the
  [defendant’s] prior felony conviction is a factor strongly      adversary system contains safeguards that protect the
  supporting a downward departure. We disagree. This              defendant’s interest in bringing forth facts that give an
  sentence should have been a deterrence for [defendant]          accurate picture to the sentencing judge. See Fed. R. Crim. P.
  preventing further criminal activity. However, this does        32(f)(1) (2002) (allowing the parties to “state in writing any
  not appear to be the case as [defendant] continued to           objections, including objections to material information,
  engage in criminal drug activity.                               sentencing guideline ranges, and policy statements contained
                                                                  in or omitted from the report”); 32(i)(1)(C) (requiring the
Id. at 1048 (emphasis added). The defendant argued on             sentencing court to “allow the parties’ attorneys to comment
appeal that Rule 32 prohibited the probation officer from         on the probation officer’s determinations and other matters
making or advocating departure recommendations in the             relating to an appropriate sentence”).
presentence report. The court found that nothing in 18 U.S.C.
§ 3553(b) (authorizing sentencing departures), the Sentencing        A sentencing court is best served by objective, accurate
Guidelines, or the Federal Rules of Criminal Procedure            information from the probation officer. That information will
explicitly prohibited departure recommendations in                likely be detrimental to the position of one side or the other,
presentence reports. Id. at 1049. “While 18 U.S.C. § 3553(a)      or might even contravene the parties’ stipulations. See, e.g.,
does require that such reports conform with Rule 32, Rule         Woods, 907 F.2d at 1543-44 (where probation officer
32(c) permits, and even expects, that a probation officer will    recommended a drug quantity higher than the parties had
make a variety of sentencing recommendations, including           agreed to). Probation officers ought not be discouraged from
those about departures.” Ibid. The court characterized the        setting forth such facts. Moreover, making recommendations
language in the addendum as “strong” and “com[ing] close to       on guideline scoring decisions or departure motions, and
crossing the line into impermissible advocacy,” but found the     taking a position on unresolved objections, is not only
report “acceptable” since it was not “unfair to the defendant.”   allowable, it is required by Rule 32. Ordinarily, the
Id. at 1049-50.                                                   recommendations that are the most useful to the district judge
                                                                  are those that are based on the specific text of the Sentencing
  I suppose that there could be cases in which the probation      Guidelines Manual, including the commentary, and are tied
officer oversteps permissible limits by becoming personally       to the facts of the case as set forth in the body of the PSR.
No. 02-5546                     United States v. Espalin      15

Such recommendations may be influential with the court, but
not unreasonably so, just as the recommendation of a
magistrate judge under 28 U.S.C. § 636(b)(2)(B) properly
may be considered and even adopted by an Article III judge.
In such circumstances, the judge conducts a de novo review
of the facts and makes an independent finding, informed by
the probation officer’s reported facts and stated opinions,
which may be challenged by the parties. Cf. Fed. R. Crim. P.
32(i) (2002). Similarly, this court has observed that “[t]he
district court must ordinarily rely in considerable measure
upon a presentence report, but it is the district court that must
make the hard decisions in cases such as this with a wide
range of sentencing issues and legal determinations to be
made.” United States v. Tocco, 200 F.3d 401, 436 (6th Cir.
2000).
  In this case, the probation officer informed the court of the
possibility of an upward departure, and recommended against
a downward departure under USSG § 5K2.13. I understand
how this language might sound like advocacy to the
defendant, against whom the recommendation went. It is an
accusation often leveled at a decision maker by the losing
side. Indeed, the probation officer emphasized the facts that
were more favorable to the government, but she did so
accurately. When the recommendation is based fairly on the
facts and dispassionately traces its way through the law to a
sensible conclusion, the requirement of neutrality has been
met. I agree that the probation officer’s statements did not
offend the requirement of neutrality in the context of former
Rule 32(c) (now Rule 32(d)).
