                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-21-2001

USA v. Nappi
Precedential or Non-Precedential:

Docket 99-6126




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2001

Recommended Citation
"USA v. Nappi" (2001). 2001 Decisions. Paper 56.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/56


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2001 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed March 21, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-6126

UNITED STATES OF AMERICA

v.

ROBERT TEQUAN NAPPI,
a/k/a QUAN NAPPI,
a/k/a KEITH WADE
       Robert Tequan Nappi,
       Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal No. 98-cr-00728)
District Judge: Honorable Katharine S. Hayden

Argued November 30, 2000

Before: BECKER, Chief Judge, RENDELL, and
MAGILL*, Circuit Judges

(Filed: March 21, 2001)



_________________________________________________________________
* Hon. Frank J. Magill, Senior Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
       David A. Holman, Esq. [ARGUED]
       Chester M. Keller, Esq.
       Office of Federal Public Defender
       972 Broad Street
       Newark, NJ 07102

        Counsel for Appellant

       Shawna H. Yen, Esq. [ARGUED]
       George S. Leone, Esq.
       Office of United States Attorney
       970 Broad Street, Room 700
       Newark, NJ 07102

        Counsel for Appellee

OPINION OF THE COURT

RENDELL, Circuit Judge.

I. INTRODUCTION

Appellant Robert Tequan Nappi ("Nappi") challenges his
federal sentence of 105 months' imprisonment, claiming
that it was improperly predicated on factual information
contained in a state presentence report ("state PSI") that
was not presented to him or his attorney prior to, or
during, the sentencing hearing, and on which he had no
opportunity to comment prior to the District Court's
imposing sentence. He argues that Federal Rule of Criminal
Procedure 32(c)(1) required the District Court to provide
him with the state PSI prior to the sentencing hearing so as
to afford him a meaningful opportunity to comment on the
information contained therein befor e the Court imposed its
sentence.

It is undisputed that Nappi did not object to the Court's
reliance upon the state PSI either during the sentencing
hearing itself or in his post-sentencing submission. We,
therefore, apply a "plain error" standard of review to the
District Court's violation of Rule 32(c)(1). While we agree
with Nappi that the Court violated Rule 32(c)(1), for the
reasons that follow, we find that he has not met his burden

                                2
of establishing that the error affected"substantial
rights,"--i.e., that there was any prejudice resulting from
the Court's error. Accordingly, we will affirm the District
Court's sentencing order.

II. FACTS and PROCEEDINGS

As Nappi's appeal focuses exclusively on the pr opriety of
his sentence, we need only briefly discuss the facts. Nappi
pled guilty to one count of possession of a fir earm by a
convicted felon in violation of 18 U.S.C. S 922(g)(1). The
federal PSI prepared by the Probation Office outlined
Nappi's criminal history, but provided limited information
with respect to his juvenile recor d. The section entitled
"Juvenile Adjudications" listed five juvenile adjudications,
and provided for each of them: (1) the date of Nappi's
arrest; (2) the specific charges filed against him; (3) the date
of sentencing and the disposition; and (4) Nappi's age at the
time of the crimes. It stated, however, that"[t]he details for
these juvenile cases are not available." Fed. PSI at 6-7.
Under the heading "Other Juvenile Matters," the federal PSI
further noted:

       In addition to the above-captioned juvenile convictions,
       between June 1986 and June 1994, Essex County
       authorities apprehended the defendant on 15 occasions
       for burglary, lewdness, assault, violation of probation,
       robbery, criminal mischief, receiving stolen property
       and resisting arrest. The charges for these arrests were
       dismissed in the Essex County Juvenile Court of
       Newark, New Jersey.

Id. at 7.

At the outset of the sentencing hearing, the Court asked
counsel if he had reviewed the federal PSI and if there was
anything further that needed to be addressed. Defense
counsel acknowledged that he read it and stated that he
had no objections to its contents. Defense counsel then
argued that Nappi should be sentenced to 84 months'
imprisonment, which was the minimum sentence within
the applicable Guideline range of 84-105 months. After the
Court afforded Nappi his right of allocution, it proceeded to
impose its sentence. Because of its significance, we recount

                               3
the relevant portions of the Court's sentencing
pronouncement:

       [T]he calculation [of the criminal history points]
       demonstrates that Mr. Nappi has a number of criminal
       history points which put him into criminal history
       category 5 and expose him to a sentence of 84 to 105
       months. It is my job as the Judge now to decide wher e
       in that range Mr. Nappi should be sentenced. . . . 84
       to 105 months, as we all know, is a 21 month
       difference which is a sizeable range. And as I
       demonstrated before, the exposure is considerably
       higher than would otherwise be the case on an of fense
       level of 23 because of his criminal history. So I look to
       the nature of the criminal offenses and as I previously
       observed, Mr. Nappi has been in the criminal justice
       system since his first arrest at age 10.

       I asked probation to share with me some of the earlier
       Presentence Reports that were written regarding Mr.
       Nappi. . . . [In connection with a 1995 arr est] a [state]
       presentence report was prepar ed that set forth Mr.
       Nappi's juvenile history, which as indicated began in
       1986 with an arrest for burglary and criminal mischief
       that was 6/21/86, within days of his 10th birthday.
       Thereafter, there were arr ests for unlawful taking and
       means of conveyance back sometime between `86 and
       `89, and the next guilty [juvenile adjudication] was in
       March of `90, after an arrest in October of `89 for theft,
       criminal mischief and possession of burglary tools. . . .
       Six months after that based on an arrest, the month
       before that [juvenile adjudication] for r obbery, Mr.
       Nappi was sentenced to one year probation. Again, we
       are still looking at his juvenile history.

App. at 29. Continuing, the Court then consider ed every
contact Nappi had with the criminal justice system between
1991 and 1994, including his history of dismissed juvenile
offenses, and concluded:

       I go through in somewhat painful detail the juvenile
       history to demonstrate another painful fact, that is, Mr.
       Nappi has consistently been involved in the criminal
       justice system as either an arrestee or a--a juvenile

                                4
       delinquent or a convicted felon since the age of ten
       with hardly any interruptions except for those periods
       of time when he has been incarcerated.

Id. at 30. The Court then considered his adult criminal
history, and commented that Nappi had "been arr ested as
an adult offender and ultimately convicted for criminal
offense[s] every year since he tur ned 13, except for the
period between February 1995 and February 1998 when he
was incarcerated." Id. The Court r emarked: "What I have is
a history of violent acts and patent recidivism and it was
that, that I must look at in terms of sentencing Mr. Nappi,
in the principal way given [by] the discr etion afforded to the
Court by the Sentencing Guidelines." Id. at 31. After voicing
its "concern that whatever this system of fers by way of
leniency or a second chance Mr. Nappi has pushed aside"
and noting that it "must consider that as well in terms of
the discretion afforded under the Guidelines," the Court
imposed its sentence of 105 months' imprisonment, the
maximum sentence within the Guideline range. Id. at 32.
Throughout the Court's lengthy pronouncement, defense
counsel did not object to the Court's reliance upon the state
PSI.

After imposing sentence, the Court asked if ther e was
"anything further" to add to the matter of sentencing.
Again, defense counsel lodged no objection to the Court's
reliance upon the state PSI. Subsequently, Nappi filed a
post-sentencing memorandum, asking the Court to
resentence him so that his federal sentence would run
concurrently with an undischarged state term of
imprisonment pursuant to U.S.S.G. S 5G1.3(c). However,
defense counsel did not seek resentencing based on the
grounds he now asserts on appeal--namely, that the
District Court improperly relied on the undisclosed state
PSI in violation of Rule 32(c)(1).

By Order of January 4, 2000, the District Court amended
the judgment of conviction to reflect that Nappi's sentence
of 105 months "shall run partially concurr ently" to the
unexpired state sentence. Nappi filed a timely notice of
appeal.

                               5
III. DISCUSSION

We have jurisdiction over this appeal pursuant to both 28
U.S.C. S 1291 and 18 U.S.C. S 3742(a)(1). Because Nappi
did not lodge an objection at the sentencing hearing, we
review the District Court's failure to comply with Rule
32(c)(1) for plain error. Fed. R. Crim. P. 52(b); United States
v. Olano, 507 U.S. 725, 732 (1993); United States v.
Stevens, 223 F.3d 239, 242 (3d Cir . 2000), cert. denied, 121
S.Ct. 1157 (2001); see also United States v. Mangone, 105
F.3d 29, 35 (1st Cir. 1997) (stating that court of appeals
applies plain error standard of review to contention that
district court violated Fed. R. Crim. P. 32(c)(1) by failing to
give adequate notice and opportunity to comment on
court's upward departure where no objection was made in
District Court). As the Supreme Court explained in Olano,
under the plain error standard of Rule 52(b), we may vacate
a sentence and remand for resentencing only if we find that
(1) an error was committed; (2) the err or was plain, that is,
it is "clear" and "obvious;" and (3) the error "affected [the
defendant's] substantial rights." Olano , 507 U.S. at 734;
Stevens, 223 F.3d at 242. This requires an assessment of
the gravity of the error in the context of the proceedings.
See Johnson v. United States, 520 U.S. 461, 469 (1997); see
also United States v. Young, 470 U.S. 1, 16 (1985) (stating
that in evaluating whether the prosecutor's improper
comments constituted plain error that seriously affected the
fairness of the proceedings, the Court must view the
statements or conduct "in context").

In most cases, to affect a defendant's "substantial rights,"
the error must have been "prejudicial," i.e., it "must have
affected the outcome of the district court pr oceedings."
Olano, 507 U.S. at 734. Under plain error r eview, the
defendant rather than the government bears the burden of
persuasion with respect to prejudice. Id. Finally, even
where plain error exists, "the Court of Appeals has
authority to order correction, but is not required to do so."
Id. at 735. We will correct a plain error only if it " `seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.' " Stevens, 223 F.3d at 242-43 n.4
(quoting Olano, 507 U.S. at 732); see also United States v.
Retos, 25 F.3d 1220, 1229 (3d Cir . 1994) (same).

                               6
On appeal, Nappi argues that the District Court
committed plain error requiring us to vacate his sentence
and remand for resentencing.1 He further claims that the
error affected his "substantial rights" because the Court
sentenced him to the maximum sentence within the
Guideline range. Finally, he urges that this case is one in
which we should exercise our discretion to correct the error
despite his failure to object in the District Court because
the error "seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings." See Olano, 507 U.S. at
736. The government responds that the err or was not plain
and that Nappi's substantial rights were not af fected
because he has not shown how he was prejudiced by his
lack of opportunity to comment on the state PSI.

A.

Nappi contends that the District Court erred by relying
upon the state PSI without providing a copy to counsel
prior to the sentencing proceeding, and without giving
counsel any opportunity to comment on it prior to imposing
sentence. Specifically, Nappi claims that the Court violated
Rule 32(c)(1) because it entitles counsel for the defendant
and the government, at the sentencing hearing, to an
"opportunity to comment on . . . matters r elating to the
appropriate sentence."2 Nappi maintains that the state PSI
qualifies as a "matter relating" to his sentence where, as
here, it is clear that the Court relied upon the document in
sentencing him at the top of the applicable Guideline range.
He argues that in order to ensure that the "opportunity to
_________________________________________________________________

1. While Nappi's brief argues that we should review the Court's
noncompliance with Rule 32 for an abuse of discr etion, Nappi's counsel
conceded at oral argument that our proper standard of review is for plain
error due to counsel's failure to object in the District Court.

2. The text of Rule 32(c)(1) provides in pertinent part:

       (1) Sentencing Hearing. At the sentencing hearing, the court must
       afford counsel for the defendant and for the Government an
       opportunity to comment on the probation officer's determinations
and
       on other matters relating to the appr opriate sentence, and must
rule
       on any unresolved objections to the presentence report.

Fed. R. Crim. P. 32(c)(1) (emphasis added).

                               7
comment" requirement in Rule 32(c)(1) has any meaning,
the District Court should have provided counsel with a
copy of the state PSI prior to the sentencing hearing in
order to afford Nappi a sufficient opportunity to review it
and prepare an appropriate response.3

We agree with Nappi's interpretation of Rule 32(c)(1) in
the circumstances presented here. Federal Rule of Criminal
Procedure 32, which governs sentencing procedures in the
federal courts, emanates from Congress' concern for
protecting a defendant's due process rights in the
sentencing process. United States v. Curran , 926 F.2d 59,
61 (1st Cir. 1991); see, e.g., United States v. Greer, 223
F.3d 41, 58 (2d Cir. 2000). Indeed, it is well settled that a
defendant has a due process right to be sentenced based
upon accurate information. E.g., T ownsend v. Burke, 334
U.S. 736, 741 (1948); Moore v. United States, 571 F.2d 179,
183 (3d Cir. 1978). Thus, to safeguar d this right, Rule 32
contains specific requirements that ensure that the
defendant is made aware of the evidence to be considered
and potentially used against him at sentencing, and is
provided an opportunity to comment on its accuracy. See
Moore, 571 F.2d at 182; see also United States v. Blackwell,
49 F.3d 1232, 1235 (7th Cir. 1995) ("It is well established
that a convicted defendant has the right to be sentenced on
the basis of accurate and reliable infor mation, and that
implicit in this right is the opportunity to r ebut the
government's evidence and the information in the
presentence report."); United States v. Jackson, 32 F.3d
1101, 1105 (7th Cir. 1994) (Coffey, J., concurring) ("We
begin with the well-established premise that a defendant
_________________________________________________________________

3. Initially, Nappi relied upon Rule 32(c)(3)(A) to argue that the
District
Court should have provided him and his counsel with a copy of the state
PSI prior to the hearing, and given them an opportunity to comment on
it. However, at oral argument his counsel focused upon the "opportunity
to comment" language in Rule 32(c)(1). In any event, we point out that,
as a technical matter, Rule 32(c)(3)(A) only requires the District Court
to
allow the defendant and his counsel a reasonable opportunity to
comment on any information excluded fr om the federal PSI under Rule
32(b)(5). And it is clear that the state PSI does not fall within the
category of information that was excluded fr om the federal PSI pursuant
to Rule 32(b)(5).

                               8
has a right to be sentenced on the basis of accurate
information, . . . which implicates the cor ollary `right to
know what evidence will be used against him at the
sentencing hearing.' ") (quoting United States v. Morales,
994 F.2d 386, 389 (7th Cir. 1993)) (internal citation
omitted); United States v. Cervantes, 878 F .2d 50, 56 (2d
Cir. 1989) (noting that requirements of mandatory
disclosure of PSI and opportunity to respond were
introduced to "ensure accuracy of sentencing information").

Among other procedural safeguards in Rule 32 that were
designed to ensure that the defendant is sentenced based
on accurate information,4 Greer, 223 F.3d at 58;United
States v. Gomez, 831 F.2d 453, 457 (3d Cir. 1987), Rule
32(c)(1) plainly states that counsel for the defendant and
the government must be provided with an"opportunity to
comment" at the sentencing hearing on the infor mation and
conclusions in the PSI and "other matters r elating to the
appropriate sentence." Fed. R. Crim. P . 32(c)(1). The
Supreme Court has explained that the "opportunity to
comment" language found in Rule 32(c)(1) pr ovides for
"focused, adversarial development of the factual and legal
issues relevant to determining the appr opriate Guidelines
sentence." Burns v. United States, 501 U.S. 129, 138 (1991)
(holding that district court must provide "r easonable notice"
of intent to upwardly depart from Guideline range).

In the instant case, the District Court relied not only on
the federal PSI the Probation Office pr epared, but also on
Nappi's state PSI that the Probation Office had in its
possession. Nappi's state PSI clearly constitutes a"matter
relating to the appropriate sentence." Id. Thus, under plain
_________________________________________________________________

4. Those additional requirements set forth in Rule 32 relating to the
information to be used at sentencing include the following: (1) Rule
32(b)(1) states that a presentence report must be prepared in most
cases; (2) Rule 32(b)(4) and (5) set forth the specific information to be
included in and excluded from the PSI; (3) Rule 32(b)(6) provides for full
disclosure to the defendant and counsel of the federal PSI within a set
time period; (4) Rule 32(b)(6) allows the defendant to make specific
objections to the factual information and conclusions in the PSI; and (5)
Rule 32(c)(1) requires the court to make afinding on "each matter
controverted" in the PSI or expressly state that no finding is necessary
because the matter will not be taken into account at sentencing.

                               9
language of Rule 32(c)(1), Nappi was entitled to an
opportunity to comment on the information in the report
during the sentencing hearing. Moreover , given that the
Rule is intended to promote "focused, adversarial
development of the factual and legal issues," it follows that
the Rule requires that counsel for the defendant and the
government be provided with a meaningful opportunity to
address the information at issue. Thus, we hold that where,
as here, counsel are faced with having to review and
address the contents of an additional document on which
the Court intends to rely at sentencing, a meaningful
opportunity to comment requires the Court, in accordance
with Rule 32(c)(1), to provide a copy of the document to
counsel for the defendant and the government within a
sufficient time prior to the sentencing hearing to afford
them with a meaningful opportunity to comment on it at
sentencing and, depending on the document, pr epare a
response or contest it. See United States v. Hayes, 171 F.3d
389, 392 (6th Cir. 1999) ("Rule 32 r equires that except in
limited circumstances, . . . the defendant must have the
opportunity to review information that will be used for
sentencing."); United States v. Burger , 964 F.2d 1065, 1072
(10th Cir. 1992) (vacating sentence wher e victim's letter
impacted restitution order and the court and Probation
Office failed to provide copies to counsel, stating that "[w]e
agree with [defendant] that the utilization of the letters
without disclosure to him was violative of Fed. R. Crim. P.
32"); United States v. Connor, 950 F .2d 1267, 1278 (7th Cir.
1991) (dicta) (commenting that district court "should
endeavor to insulate themselves" from extraneous
documents it receives prior to sentencing unless it "makes
them known to the parties"); Curran, 926 F.2d at 63
(exercising supervisory powers and adopting rule that
sentencing courts considering extraneous documents
should either "make clear that the document is not being
used for its factual content, or should disclose to the
defendant as much as was relied upon, in a timely manner,
so as to afford the defendant a fair opportunity to examine
and challenge it");5 see also United States v. Berzon, 941
_________________________________________________________________

5. In Curran, the district court r eferred to information contained in
letters from the defendant's victims in imposing its sentence without
disclosing the letters to the defendant or his counsel. The Court of

                               10
F.2d 8, 18 (1st Cir. 1991) (stating that district court should
have alerted the defendant, in advance of the sentencing
hearing, that it expected to consider co-defendant's
testimony at the sentencing hearing).

By stating that Rule 32(c)(1) requires the District Court to
disclose such additional documents "within a sufficient
time prior to the sentencing hearing to affor d them with a
meaningful opportunity to comment," we refrain from
adopting a more rigid rule because the time r equired in
order for counsel to have a meaningful opportunity may
vary depending on the circumstances. For example, we do
not foreclose the possibility that it would be sufficient
prehearing disclosure under Rule 32(c)(1) if the Court
shared the documents with defense counsel on the date of
the scheduled sentencing hearing, if the cir cumstances
warranted that procedure. Depending on the number and
complexity of the documents at issue, such pr ehearing
notice could suffice if the Court adjourned the sentencing
for a reasonable period in order to pr ovide counsel with
sufficient time to prepare a response. The District Court
should be guided by the principal goal of pr oviding
adequate notice and opportunity to respond to the factual
information the Court intends to consider at sentencing.

Requiring reasonable prehearing disclosur e of the
documents that the Court intends to rely upon at
sentencing comports with the manner in which Rule 32
_________________________________________________________________

Appeals for the First Circuit found that Rule 32 technically did not apply
because the letters referenced at the sentencing hearing were not made
part of the federal PSI. Curran, 926 F .2d at 62. It thus exercised its
supervisory powers to fashion its rule that district courts must disclose
extraneous documents to defendants "in a timely manner" if they intend
to rely upon them at sentencing. As is evident from the text, we agree
with the legal rule adopted in Curran, but we premise our holding on the
language of Rule 32(c)(1). E.g., Hayes , 171 F.3d at 393 (disagreeing with
Curran court's conclusion that Rule 32 does not require disclosure of
extraneous documents but agreeing with r esult and rule it adopted); see
also Burns, 501 U.S. at 135-37 (interpr eting Rule 32 as requiring a
district court to give a defendant prior war ning that it is considering
an
upward departure on a basis not mentioned in the federal PSI, despite
the fact that the Rule's literal language contains no such requirement).

                               11
prescribes disclosure of the federal PSI to the defendant
and counsel, which, in most circumstances, serves as the
critical document providing the factual and legal
information bearing upon the Court's sentencing
determination. See Moor e, 571 F.2d at 182 (stating that an
"abiding concern about the use by a trial judge of material
derived from a [presentence report] is that it may contain
false or unreliable information," but noting that "this
danger is somewhat alleviated" by disclosur e requirement
in Rule 32); see also Curran, 926 F.2d at 64 & n.4 (noting
that "concern for ensuring the reliability of information
used at sentencing seems to have informed the disclosure
policy embodied in Rule 32"). The Advisory Committee's
Note to Rule 32 explains that the Rule was amended in
1983 to require the district court, on its own initiative, to
afford the defendant and his counsel an opportunity to read
and comment on the PSI within "a reasonable time before
imposing sentence," because "if the report is not made
available to the defendant and his counsel in a timely
fashion, and if disclosure is only made on r equest, their
opportunity to review the report may be inadequate." Fed.
R. Crim. P. 32 advisory committee's note (1983 amends.).6
Id.
_________________________________________________________________

6. A Prior to 1983, Rule 32(c)(3)(A), as enacted in 1975, had required the
court to allow defense counsel or the defendant"to read" the PSI and
comment on it, but disclosure was requir ed only "before imposing
sentence," and only upon the defendant's specific request. The pre-1975
version of Rule 32(c)(2) permitted, but did not require, the court to
disclose the contents of the PSI to the defendant or his counsel and
provide an opportunity to comment on it. Fed. R. Crim. P. 32 advisory
committee's note (1974 amends.).

After the 1983 amendment, Rule 32(c)(3)(A) was amended again in
1989 to change the "reasonable time" language to require that the
defendant and defense counsel be provided with"a copy of the PSI at
least 10 days prior to sentencing," unless the defendant waives that
minimum period. Id. advisory committee's note (1989 amends.). Finally,
in 1994, Rule 32 was reorganized and amended, and Rule 32(b)(6) now
provides that the probation officer must present the PSI to the
defendant, the defendant's counsel, and the gover nment's counsel, no
later than 35 days before the sentencing hearing, unless the defendant
waives that minimum period. Moreover Rule 32(b)(6)(B),(C), and (D) now
provide explicit deadlines and guidance on r esolving disputes about the
contents of the PSI. Id. advisory committee's note (1994 amends.).

                               12
As a matter of logic, regardless of whether the relevant
factual information is derived from the federal PSI or some
other additional source, the defendant must be afforded the
opportunity to review the evidence assembled against him
for sentencing purposes and to prepare a meaningful
response. And unless disclosure of the additional
documents pursuant to Rule 32(c)(1) is made sufficiently in
advance of the sentencing hearing to permit counsel to
review the information and to allow infor med comment, the
purpose of promoting accuracy and fairness in the
sentencing process, which undergir ds Rule 32, will be
defeated. E.g., Burger, 964 F .2d at 1073; Berzon, 941 F.2d
at 18; see also 3 Charles Alan Wright, Federal Practice and
Procedure: Criminal S 524 (2d ed. 1982) (noting that
disclosure of the PSI "is not an end in itself," but rather, it
"provide[s] an opportunity for the defense to comment on
statements . . . and to correct mistakes"); cf. Burns, 501
U.S. at 135-36 ("In our view, it makes no sense to impute
to Congress an intent that a defendant have the right to
comment on the appropriateness of a sua sponte departure
but not the right to be notified that the Court is
contemplating such a ruling.").

In the instant case, Nappi had no knowledge that the
Court even had the state PSI in its possession, let alone
would consider it, until the Court mentioned it while it was
imposing its sentence.7 In the circumstances, the Court
effectively blind-sided Nappi's counsel with the document,
and completely foreclosed his ability to r espond
meaningfully, or for that matter, at all.
_________________________________________________________________

7. While the government surmises that Nappi "in all likelihood received
a copy of the state PSI prior to being sentenced in New Jersey state
court" because N.J. Crim. R. 3:21-2 states that the PSI "shall be
furnished to the defendant and the prosecutor," Appellee's Br. at 14 n.5,
the record in the instant case does not r eveal whether Nappi ever
received a copy of the state PSI during the state proceedings. Moreover,
at oral argument, Nappi's counsel stated he was not certain whether his
client had received the report during the state sentencing proceeding. In
any event, it is clear that Nappi and his attor ney did not receive a copy
of the state PSI in the context of the federal sentencing hearing, which
occurred several years after the report was initially prepared.

                               13
The government urges that Rule 32(c)(1) does not
mandate that the District Court disclose all of the
additional documents it receives in connection with a
defendant's sentence, and, accordingly, we should not read
into the Rule a requirement that the Court must disclose
documents that it intends to rely upon at the sentencing
hearing. The government's reading of the rule, however,
cannot be squared with the text of Rule 32(c)(1). The
government's position contravenes the plain language of
Rule 32(c)(1) because it undermines the expr ess right to
comment, through counsel, "upon matters r elating to the
appropriate sentence." As we have indicated, the Rule
protects the defendant's right to an opportunity--a
meaningful opportunity--to comment on infor mation
relating to the federal sentence about to be imposed. And
absent advance disclosure of the documents the Court has
received and intends to rely upon at sentencing, defense
counsel would have no ability to comment in an ef fective
manner. See Burns, 501 U.S. at 136 ("The right to comment
. . . has little reality or worth unless one is informed that
a decision is contemplated.") (internal quotation marks
omitted).

Further, the government's position runs counter to the
Rule's stated "purpose of promoting focused, adversarial
resolution of the legal and factual issues r elevant to fixing
Guidelines sentences," id. at 137, and congressional intent
in promulgating the Rule in the first place. Obviously,
imposing a prehearing disclosure r equirement works to
counsels' benefit because it affords them more time to
compose their thoughts and consider their possible
responses than if the sentencing court wer e to inform
counsel of the existence, and contents of, the document for
the first time during the sentencing hearing. The additional
time to prepare thus increases the likelihood that the
responses provided will be thoughtful and well reasoned,
which in turn furthers the adversarial pr ocess
contemplated by Rule 32.

Moreover, as we have explained, the disclosure
requirements in Rule 32 were developed to ensure that the
defendant is sentenced based upon accurate infor mation.
Berzon, 941 F.2d at 18; see United States v. Reiss, 186 F.3d

                               14
149, 157 (2d Cir. 1999). If we accepted the government's
position and adopted an interpretation of Rule 32(c)(1) that
would permit the District Court to inexplicably withhold
from the parties a document that it relies upon in imposing
its sentence, we would be opening the door to a gr eater
possibility that the defendant could be sentenced based
upon inaccurate sentencing information, rather than
eliminating that very real danger from the sentencing
process.

Finally, our view that Rule 32(c)(1) requir es reasonable
prehearing disclosure of additional documents considered
by the Court is consistent with the Supreme Court's
analysis in Burns v. United States, where the Court,
although addressing a slightly differ ent issue under Rule
32, reached the same conclusion regar ding the importance
of notice and opportunity to comment in the sentencing
process. In Burns, the Court r eviewed a district court's sua
sponte upward departure from the applicable Guideline
range. 501 U.S. at 135-37. The district court had given the
defendant no advance notice of its intent to depart, and no
opportunity to comment on it prior to imposing sentence.
On appeal, the defendant argued that Rule 32(a)(1)
(currently Rule 32(c)(1)) obliged the district court to furnish
advance notice of its intent to upwardly depart from the
Guideline range. He based his position on the language in
Rule 32(a)(1) which required the District Court to afford the
parties with "an opportunity to comment upon . . . matters
relating to the appropriate sentence." Id. The Court of
Appeals for the District of Columbia Circuit adopted the
government's reading of Rule 32 and affirmed the sentence.
Applying a textual analysis, the court of appeals held that
the Rule contained no express language r equiring a district
court to provide notice of the court's intent to upwardly
depart from the Guideline range. Id. at 132.

On appeal to the Supreme Court, the Court r ejected the
court of appeals' interpretation of Rule 32(a)(1), grounding
its analysis on the "textual and contextual evidence of
legislative intent."8 First, it pointed out that the court of
_________________________________________________________________

8. In November 1991, the Sentencing Commission added Application
Note 1 to U.S.S.G. S 6A1.2 to requir e reasonable notice of an intention
to depart, reflecting the Supreme Court's decision in Burns. See U.S.S.G.
app. C, amend. 425 (1998).

                               15
appeals' reading of Rule 32(a)(1) "r endered meaningless the
parties' express right `to comment upon matters relating to
the appropriate sentence.' " Id. at 136 (quoting Rule
32(a)(1)). Second, it rejected the gover nment's argument,
predicated on congressional silence in Rule 32(a)(1), as
being inconsistent with Rule 32's "purpose of pr omoting
focused, adversarial resolution of the legal and factual
issues relevant to fixing Guidelines sentencing." Id. at 137.
It concluded that

       before a district court can depart upwar d on a ground
       not identified as a ground for upward departure either
       in the presentencing report or in a pr ehearing
       submission by the government, Rule 32 r equires that
       the district court give the parties reasonable notice that
       it is contemplating such a ruling. This notice must
       specifically identify the ground on which the district
       court is contemplating an upward departur e.

Id. at 138-39.9

In the instant case, the government's ar gument is a
textual one, substantially similar to the one the Supreme
Court expressly rejected in Bur ns. It asks us to elevate form
over substance and adopt a construction of Rule 32(c)(1),
that, as in Burns, would be contrary to the language and
purpose of the Rule. But the Court's holding and analysis
in Burns confirms that we must reject the government's
proposed reading of the phrase "opportunity to comment
. . . on matters relating to the appropriate sentence" as not
requiring disclosure of a document to counsel on which the
Court intends to rely at sentencing. Indeed, the fact that
the Rule does not expressly requir e disclosure is not
dispositive when, as in Burns, "all other textual and
contextual evidence of congressional intent" points to the
opposite conclusion. Id. at 137.
_________________________________________________________________

9. The Court did not indicate what "reasonable notice" meant in practice.
It explicitly stated that "[b]ecause the question of the timing of the
reasonable notice required by Rule 32 is not before us, we express no
opinion on that issue. Rather, we leave it to the lower courts, which, of
course, remain free to adopt appropriate procedures by local rule."
Burns, 501 U.S. at 129 n.6.

                               16
We also are not persuaded by the gover nment's argument
that the District Court cured its error in not sharing the
document with counsel by actually affor ding counsel with
an opportunity to comment when it asked if ther e was
"anything further" to discuss after it sentenced Nappi to
105 months' imprisonment. The concept of meaningful
opportunity to comment would be turned on its head if we
were to find that such a question, at the conclusion of the
sentencing hearing, constituted an opportunity for
comment on a document after the Court has pr onounced
its sentence. At that point, the Court has alr eady imposed
its sentence, and any objection to the contents of the
document is a fruitless exercise as far as actually
influencing the sentencing court is concer ned.10 Rather, the
purpose behind Rule 32(c)(1) as it applies in this context is
to allow the defendant an opportunity to rebut or explain
the contents of a document in an attempt to persuade the
court concerning its meaning and/or relevancy before it
sentences the defendant.

In sum, we are convinced that the District Court violated
Rule 32(c)(1) because it failed to disclose the state PSI to
counsel for the defendant and the government within a
sufficient time prior to the sentencing hearing, and did not
provide counsel with an opportunity to comment on the
contents of the document prior to pronouncing its sentence.

B.

Our conclusion that the Court violated Rule 32(c)(1) does
not end our inquiry. We must determine whether the error
was plain, that is, "clear or obvious," and the defendant
must show that the error "affect[s] substantial rights." We
will not dwell on the obviousness of the Rule 32(c)(1) error
under current law because we believe that Nappi's
_________________________________________________________________

10. Of course, a belated objection is not entir ely without purpose, as it
would preserve the issue for review by the appellate court. By referring
to a post-sentencing pronouncement objection as"fruitless," we mean
only to highlight the fact that by that point in the proceeding, the Court
has already made up its mind that the document is relevant, and has
already formed an opinion as to how it af fects the sentencing
determination.

                               17
substantial rights were not affected.11 In Olano, the Court
explained that "in most cases, [`affect[s] substantial rights']
means that the error must have been prejudicial: It must
have affected the outcome of the district court proceedings."
Olano, 507 U.S. at 734. The Court also clarified that under
plain error review "the defendant rather than the
government bears the burden of persuasion with respect to
prejudice." Id.

Nappi urges that the appropriate course of action to cure
the Rule 32(c)(1) violation that occurred is to vacate the
District Court's sentence of 105 months' imprisonment, and
remand the matter for resentencing. His primary contention
is that we should be guided by our analysis in Unites States
v. Faulks, 201 F.3d 208 (3d Cir. 2000), a case in which we
vacated a defendant's federal sentence and r emanded for
resentencing based upon the District Court's failure to
pronounce its sentence orally and in the defendant's
presence, in violation of Fed. R. Crim. P . 43.
_________________________________________________________________

11. The error here was the failur e to give counsel the "opportunity to
comment . . . on matters relating to the appr opriate sentence." Fed. R.
Crim. P. 32(c)(1). We have concluded that the state PSI was such
material, and that the District Court should have pr ovided counsel with
a meaningful opportunity to comment by pr oviding the document in
advance of the sentencing hearing. We concede that it could be argued
that, in crafting the way in which we give meaning to the concept of
"opportunity to comment on . . . matters r elating to the appropriate
sentence," we have established a prehearing disclosure requirement that
is not so "obviously" or "clearly" mandated by the specific language of
Rule 32(c)(1), and that accordingly, the District Court's failure to
disclose
the document to counsel cannot constitute "plain error." On the other
hand, because an error is clear if it is "clear under current law," Olano,
507 U.S. at 734, it could be argued that case law we reference above has
prescribed the type of disclosure we endorse, such that the error was
clear under current law. See United States v. Clark, 237 F.3d 293, 298
(3d Cir. 2001) (stating that defendant's pr oposed methodology for
calculating Guidelines sentence was plausible but that he could not
demonstrate that the court's use of a contrary methodology was "an
error [which was] clear under curr ent law," especially in view of the
existing case law from other courts of appeals that supported district
court's methodology). However, as we have indicated, we need not, and
will not, address that issue.

                               18
In the alternative, Nappi maintains that he has satisfied
his burden of proving prejudice in view of the fact that the
District Court sentenced him to the maximum sentence
allowable in the Guideline range--105 months'
imprisonment. His position appears to be that, in view of
the Court's obvious reliance upon the state PSI, it is clear
that the Court would have sentenced him to a lower
sentence within the Guideline range if it had not considered
the information.

We begin with Nappi's argument that our analysis in
Faulks compels the conclusion that vacatur and r emand is
appropriate, as it need not detain us long. Hefirst points
out that in Faulks, we vacated a sentence and remanded
for resentencing because we could not "know with sufficient
certainty that the error [in failing to impose the Court's
sentence orally in the defendant's physical pr esence] was
harmless." Id. at 213. Nappi then r elies upon our
statements in Faulks that compliance with Rule 43 was not
"a meaningless formality" but rather"a fundamental
procedural guarantee" that "implicate[d] constitutional
concerns," id. at 211-13, to contend that the procedural
protection of being afforded an opportunity to comment on
information affecting the sentence is equally as
fundamental. From these premises, he ur ges us to vacate
his sentence and remand for resentencing in view of the
Court's disregard of Rule 32(c)(1), even if, strictly speaking,
he cannot affirmatively demonstrate any pr ejudice from the
error.

We are not persuaded by Nappi's attempted analogy to
Faulks for two reasons. Its primary analytical flaw is that it
overlooks a critical distinction between Faulks and this
case: in Faulks, we indicated that wer e we to examine the
harmlessness, it was the government , rather than the
defendant, that had the burden of establishing the error's
harmlessness under Rule 52(a), and we stated that it had
not "even attempted to meet its burden of establishing the
error's harmlessness." Id. at 212-13. Here by contrast,
Nappi bears the burden of persuasion on the issue of
prejudice under Rule 52(b) because he failed to object to
the Rule 32(c)(1) violation during the course of the District
Court proceedings. Thus, the fact that we vacated Faulks'

                               19
sentence and remanded for resentencing where there was
no showing of harmlessness provides no support for the
conclusion that the same result should obtain in the
instant case, which is governed by the mor e stringent plain
error standard of review mandated by Rule 52(b).

Nappi's reliance on Faulks is further misplaced because
it is bottomed on the incorrect premise that the Court's
violation of Rule 32(c)(1) implicates fundamental
constitutional concerns as did the Rule 43(a) error involved
in Faulks. In Faulks, we noted that the "Rule 43 error in
this case implicates constitutional concerns." Faulks, 201
F.3d at 213. We found United States v. Moree, 928 F.2d
654, 656 (5th Cir. 1991), which focused on the "elementary"
nature of the defendant's right to be pr esent at the time of
sentencing, directly applicable. Subsequently in Stevens, we
hinted that the Faulks court found that the violation of
Rule 43 amounted to a structural constitutional defect in
sentencing, although the Faulks opinion did not explicitly
so state. Stevens, 223 F.3d at 245 (citing Faulks, 201 F.3d
at 211).

The Supreme Court has recognized a "very limited class
of fundamental constitutional errors" that"infect the entire
trial process" and are so serious that they "require
automatic reversal . . . without regar d to their affect on the
outcome." Neder v. United States, 527 U.S. 1, 7, 8 (1999)
(such errors including complete denial of counsel, biased
trial judge, racial discrimination in selection of a grand
jury, denial of self-representation at trial, denial of a public
trial, and defective reasonable-doubt jury instruction). In
Stevens, we rejected the defendant's attempt to add to this
"very limited class of cases" the district court's failure to
verify that the defendant had read and discussed the
federal PSI with his attorney in accor dance with Rule
32(c)(3)(A). Stevens, 223 F.3d at 244. We concluded that the
court failed to comply with Rule 32(c)(3)(A)'s verification
requirement, but that the violation did not rise to the level
of a constitutional error, let alone a structural defect
requiring automatic vacatur of the sentence without regard
to the error's affect on the outcome of the proceedings. Id.

We view the Rule 32(c)(1) error her e as similar to the Rule
32(c)(3)(A) violation at issue in Stevens. While the

                               20
procedures set forth in Rule 32 ar e intended to safeguard
the defendant's due process rights at sentencing, e.g.,
Curran, 926 F.2d at 61, and if a defendant were sentenced
based upon inaccurate information, his due pr ocess rights
would be violated, e.g., Townsend , 334 U.S. at 741; Moore,
571 F.2d at 183-84, it is clear that the err or that occurred
here, without more, is not of constitutional dimension. E.g.,
United States v. Simmonds, 235 F.3d 826, 837 (3d Cir.
2000); Curran, 926 F.2d at 61; see also Fed. R. Crim. P. 32,
advisory committee's note (1966 amends.) ("It is not a
denial of due process of law for a court in sentencing to rely
on a report of a presentence investigation without
disclosing such report to the defendant or giving him an
opportunity to rebut it.").

Accordingly, Nappi bears the burden of demonstrating
that he was prejudiced by the District Court's error. We
agree with the government's position that Nappi has not
made a sufficient showing of prejudice to warrant the
conclusion that the Rule 32(c)(1) error "af fect[ed] [his]
substantial rights." Olano, 507 U.S. at 734. We reject
Nappi's argument that we should vacate and r emand the
matter for resentencing based upon the natur e of the right
at stake and the magnitude of the District Court's error. To
the contrary, Nappi must convince us that, had he known
that the District Court was going to rely on the state PSI,
he would have done something by way of argument or proof
relating to the document that probably would have
impacted upon the Court's sentence. As we have indicated,
under the plain error standard, Nappi bears the burden of
establishing that the error "affected the outcome of the
district court proceedings." Olano, 507 U.S. at 734. On this
record, we conclude that Nappi has not done so, and that
it would probably be difficult to prove in any event under
the facts presented.

First, it is significant that defense counsel has not
provided any indication as to how, if given the proper notice
and opportunity to comment, he could have challenged the
information in the report in a manner that would have led
the District Court to impose a lesser sentence within the
Guideline range. Importantly, defense counsel has made no
suggestion that the information in the r eport was

                               21
inaccurate or false, or that the Court mischaracterized any
of the information it cited from the state PSI. E.g., Stevens,
223 F.3d at 243 (finding no prejudice from violation of Rule
32(c)(3)(A) where defendant failed to assert any inaccuracy
in the PSI). In the circumstances, he has failed to show us
anything that would even justify an inference, let alone
prove, that the District Court's sentence was bound to be
different if Nappi had been affor ded a copy of the state PSI
in advance of the hearing and had been given an
opportunity to comment on it.12 See United States v. Garcia,
78 F.3d 1457, 1465 (10th Cir. 1996) (where district court
evaluated witness's credibility by relying upon extra-record
affidavit at sentencing without first infor ming defendant,
court of appeals stated that district court violated Rule
32(c)(1) but found no prejudice; court noted that
"[d]efendant fails to allege any facts or law that suggest the
court's opinion of [the witness] would have changed if
defendant had been aware of the . . . affidavit prior to
sentencing"); United States v. Lockhart, 58 F.3d 86, 89 (4th
Cir. 1995) (concluding that defendant failed to demonstrate
that he was prejudiced by the court's Rule 32(c)(3)(A)
violation where he could not "point[] to any portion of the
presentence report that he would have challenged had the
district court made an express inquiry"); United States v.
Rangel-Arreola, 991 F.2d 1519, 1526 (10th Cir. 1993)
_________________________________________________________________

12. In evaluating whether Nappi has satisfied his burden of showing
prejudice, it is important to keep in mind that the District Court could
have relied upon the state PSI if it had complied with Rule 32(c)(1). All
the Court was required to do was to disclose the state PSI to counsel
prior to the sentencing hearing and affor d counsel an opportunity to
comment on it before pronouncing its sentence. Thus, the relevant
prejudice inquiry is whether, and how, defense counsel could have
rebutted the contents of the report, and whether the Court's sentencing
determination would have been differ ent if counsel had been given the
opportunity to do so; it is not whether the Court would have imposed a
lighter sentence within the Guideline range in the absence of its
consideration of the state PSI. However, even if we were looking at the
prejudice issue from that perspective, Nappi could not demonstrate
prejudice in any event. As we explain in the text, the information in the
state PSI was largely cumulative, and ther e was a sufficient basis for
the
Court's sentence based on the factual information already found in the
federal PSI.

                               22
(affirming sentence where district court violated Rule 32 by
failing to determine whether defendant had opportunity to
review PSI and discuss it with his attor ney because
defendant "suffered no prejudice;" court noted that
defendant "points to no factual inaccuracies used in
computing his sentence"); United States v. Stevens, 851
F.2d 140, 145 (6th Cir. 1988) (affir ming sentence
notwithstanding district court's failure to determine
whether defendant had opportunity to review PSI and
discuss it with counsel; court of appeals found that
defendant did not establish prejudice because district court
did not rely on inaccurate information in sentencing
defendant).13

Further, we doubt whether it would be possible to prove
harm, in any event. As the government correctly points out,
the vast majority of the information contained in the state
PSI was also contained in the federal PSI, either in the
"Juvenile Adjudications" section or elsewher e in the report.
Even by Nappi's own admission, the discrepancies were few
in number and the overlap was significant. Thus, rather
than supplying totally new factual information concerning
the extent of Nappi's juvenile criminal history, the state PSI
supplemented, but only slightly, the information already
found in the federal PSI. See Appellant's Br . at 13
_________________________________________________________________

13. See also United States v. Moore , 958 F.2d 646, 651 (5th Cir. 1992)
(rejecting argument that court violated Rule 32 in considering
confidential information in sentencing defendant without providing an
opportunity to comment; court noted that defendant did not object below
and that "[e]ven in these proceedings, there is no claim made that the
trial judge's information was inaccurate"); United States v. George, 911
F.2d 1028, 1029-30 (5th Cir. 1990) (holding that district court complied
with former Rule 32(a)(1) where court asked counsel during sentencing
hearing whether circumstances warranted upwar d departure and
counsel responded; court rejected defendant's argument that notice
provided was insufficient and stated that defendant "has not shown how
he was prejudiced by this notice [given], how he could have been helped
by additional notice or time"); United States v. DeBardeleben, 740 F.2d
440, 447 (6th Cir. 1984) (affirming sentence where court heard evidence
at sentencing hearing not contained in presentence report; court based
decision in part on fact that defendant "does not suggest what rebuttal
he could make [to the evidence] other than his blanket denial, which the
court had already heard").

                               23
(characterizing state PSI as "supplement[ing] Nappi's
juvenile history as stated in the federal pr esentence
report"). We also recognize that the state PSI made it easier
for the Court to consider the totality of the juvenile history
because it listed each of Nappi's contacts with the juvenile
justice system in chronological order . But the fact still
remains that the amount of overlap in the federal and state
PSIs supports the conclusion that the information in the
state PSI was largely cumulative, which weighs against a
finding of prejudice. See United States v. Patrick, 988 F.2d
641, 648 (6th Cir. 1993) ("Where the evidence upon which
the sentencing court relies without previously notifying the
defendant is of the same character, allows the same
inferences, and, most importantly, is subject to the same
arguments in rebuttal as evidence in the record of which
the defendant is already aware, it seems logical to conclude
that advance notice would not give the defendant any
additional incentive or ability to challenge the evidence.");
cf. Hayes, 171 F.3d at 394-95 (court found that violation of
Rule 32(c)(1) affected substantial rights based in part on
the fact that there was no indication that the information
provided in victims' letters, on which the district court
relied in sentencing the defendant, was similar to or
cumulative of evidence already presented).

Additionally, given the wealth of information already in
the federal PSI, we have little difficulty infinding that there
was a sufficient amount of information concerning Nappi's
juvenile history in the federal PSI that could easily have led
the Court to the same decision--i.e., that Nappi's numerous
arrests and convictions warranted the harshest sentence
available within the applicable Guideline range. This fact
also supports the conclusion that there was no prejudice in
the circumstances presented here. See Patrick, 988 F.2d at
648 (finding harmless error in failing to apprise defendant
of court's reliance on extra-recor d information where "the
other evidence already before the sentencing judge and a
part of the presentence report fully supported the judge's
ultimate finding that [defendant's] r ole was that of a
leader."). Accordingly. we conclude that Nappi has not
shown that he was prejudiced by the Court's err or.14
_________________________________________________________________

14. Given this conclusion, we need not consider the last part of the
Olano framework--whether we should exer cise our discretion to correct

                               24
IV. CONCLUSION

We recognize, of course, that the "sentencing judge may
attend to more than the PSI when making sentencing
decisions," United States v. Pandiello, 184 F.3d 682, 686
(7th Cir. 1999), and our holding today does not foreclose a
sentencing court's reliance upon additional documents if it
is helpful to do so. Nevertheless, when the District Court
relies on documents other than the federal PSI at
sentencing, we hold that Rule 32(c)(1) requir es the District
Court to share any such documents with counsel for the
defendant and the government within a sufficient time prior
to the sentencing hearing to afford them a meaningful
opportunity to respond. Rule 32(c)(1) also mandates that
the Court provide counsel with a reasonable opportunity to
comment on any such additional information prior to
pronouncing its sentence.

We hold that the District Court erred   in sentencing Nappi
based in part on information found in   the state PSI.
However, Nappi has not met his burden   of establishing that
his substantial rights were affected.   W e therefore will
AFFIRM the District Court's judgment.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

the error because it "seriously affects the fairness, integrity, or public
reputation of judicial proceedings." Stevens, 223 F.3d at 242 (quoting
Olano, 507 U.S. at 732).
                                25
