                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-27-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1740




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Recommended Citation
"USA v. Lockovich" (2002). 2002 Decisions. Paper 779.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/779


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                                               NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                          No. 02-1740


                    UNITED STATES OF AMERICA

                               v.

                       JOHN J. LOCKOVICH,

                                        Appellant


          Appeal from the United States District Court
            for the Western District of Pennsylvania
             (D.C. Criminal Action No. 01-cr-00196)
            District Judge: Honorable Alan N. Bloch


           Submitted Under Third Circuit LAR 34.1(a)
                       November 21, 2002


            Before: BARRY and AMBRO, Circuit Judges
                     DOWD*, District Judge

               (Opinion filed November 27, 2002)



                            OPINION



     *Honorable David D. Dowd, Jr., United States District Judge for the Northern
District of Ohio, sitting by designation.
AMBRO, Circuit Judge

     Appellant John J. Lockovich pleaded guilty to the federal offense of submitting a
false loan application, which he committed while on supervised release from an earlier
conviction. The District Court sentenced Lockovich to twenty-seven months
imprisonment and five years of supervised release. Lockovich challenges this sentence
on appeal. His sole argument is that because the Probation Office failed to update his
Presentence Investigation Report (PSIR) to include information from medical records he
had provided, the District Court sentenced him on the basis of inaccurate information,
thus violating his due process rights. We have jurisdiction pursuant to 18 U.S.C.
3742(a)(1) and 28 U.S.C. 1291, and shall affirm.
                               I.
     On January 28, 2002, the Probation Office sent Lockovich’s PSIR to the parties
and the District Court. The section on his "Physical Condition" explained, in detail, that
he suffered from an extensive number of severe medical problems. It also noted:
     50. The defendant stated that he suffered a stroke in August 2001 due to
          a dissected carotid artery in his neck. At the time of this interview,
          Mr. Lockovich indicated that he expected to undergo surgery within
          the next couple of weeks. He was asked to provide documentation
           regarding his surgery once it was performed.   To date, he has
           provided no further information.

     51.   Also when interviewed, Mr. Lockovich indicated that he was taking
           a variety of medications. He agreed to provide a list but has not done
           so yet.

Lockovich filed his response to the PSIR on February 14, 2002, attached certain medical
records, and stated: "In view of the seriousness of this situation, it is respectfully
requested that Lockovich be incarcerated at the Federal Prison Camp at Ashland,
Kentucky, so that he will be close to FCI Ashland which has a major medical facility."
     On February 21, 2002, the Probation Office sent to the parties and the District
Court an Addendum to the PSIR. The Addendum stated that Lockovich had objected to
the PSIR’s recommended sentence due to his ill health, and it also noted that he had
"attached his medical records in support of his argument." The Addendum also included
the Probation Office’s response: "[T]his man’s physical problems can be adequately
handled by the U.S. Bureau of Prisons and should not be used as a reason to avoid
additional imprisonment. Further, this man never supplied his medical information until
now, despite requests by this probation officer to do so."
     The District Court released its Tentative Findings and Rulings Concerning
Disputed Facts or Factors on February 28, 2002. It noted that "Defendant [had] attached
medical records" which documented his health problems, and the District Court
recommended, as Lockovich had requested, incarceration at the institution closest to FCI-
Ashland. On March 1, 2002, Lockovich moved for a thirty-day delay in surrender and
sentence, and attached more medical records. The District Court denied this motion.
     Lockovich was sentenced on March 7, 2002. The District Court stated that it "has
also considered Defendant’s request that his serious medical problems mitigate in favor of
imposing the term of imprisonment at this case to be served concurrent" to the term he
received for his prior conviction. Lockovich’s counsel declined the opportunity to
introduce any additional evidence, but she did again ask for leniency given his poor
health. The District Court then imposed a sentence of twenty-seven months
imprisonment and recommended that Lockovich be sent to an institution near FCI-
Ashland.
                              II.
     Lockovich argues that, because the Probation Office’s materials failed to reflect
that he had submitted his medical records, the District Court sentenced him under the
faulty impression that he had not complied with the Government’s requests for this
information. Because Lockovich did not raise this objection before the District Court, we
review his sentence for plain error. See United States v. Cianci, 154 F.3d 106, 111 (3d
Cir. 1998).
     Under that standard, "before an appellate court can correct an error not
     raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s]
     substantial rights. If all three conditions are met, an appellate court may
     then exercise its discretion to notice a forfeited error, but only if (4) the
     error seriously affect[s] the fairness, integrity, or public reputation of
     judicial proceedings."

United States v. Vasquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc) (quoting Johnson v.
United States, 520 U.S. 461, 466-67 (1997)).
     None of Lockovich’s contentions establishes error by the District Court, much less
error that adversely affected his sentence. Lockovich’s claim that the PSIR and
Addendum did not reflect the fact that he had submitted medical records to substantiate
his condition is plainly contradicted by the statements in the Addendum explicitly
recognizing that he had done so. Furthermore, the record demonstrates that the District
Court was fully aware of   and sensitive to   Lockovich’s medical needs. Its tentative
findings acknowledged that Lockovich had attached his medical documents. That the
District Court acceded to Lockovich’s request that he be incarcerated near the medical
facilities at FCI-Ashland indicates that Lockovich’s poor health was given due
consideration.
     Finally, "[i]n order to make out a due process claim, a defendant must show that
the district court relied upon some significant piece of ’misinformation’" at sentencing.
United States v. Spiropoulos, 976 F.2d 155, 163 (3d Cir. 1992) (quoting United States v.
Matthews, 773 F.2d 48, 51 (3d Cir. 1985)). No misinformation existed here, as the
District Court did not sentence Lockovich under the mistaken belief that he had refused
the Probation Office’s entreaties to submit his medical records. As such, Lockovich’s
due process rights were not violated.
                              III.
     For the reasons stated above, we conclude that Lockovich was not sentenced in
error, and we affirm the sentence imposed by the District Court.TO THE CLERK:

     Please file the foregoing Opinion.



                              By the Court,



                              /s/ Thomas L. Ambro
                              Circuit Judge
