                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 11-1088
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                    WILLIAM WILKERSON, a/k/a Tony Patterson

                                   William Wilkerson,
                                                Appellant
                                         ______

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                          (D.C. Criminal No. 10-cr-00153-1)
                     District Judge: Honorable R. Barclay Surrick
                                       ______

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  December 6, 2011

       Before: HARDIMAN, BARRY, and VAN ANTWERPEN, Circuit Judges.

                               (Filed: December 07, 2011)
                                         ______

                              OPINION OF THE COURT
                                      ______

VAN ANTWERPEN, Circuit Judge.

      Appellant William Wilkerson pled guilty to possession of a firearm following a

felony conviction, in violation of 18 U.S.C. § 922(g)(1), and was sentenced to 54 months

of incarceration. Wilkerson appeals this sentence on two grounds. First, he asserts that
the District Court violated Rule 32(i)(1)(A) of the Federal Rules of Criminal Procedure

by failing to verify that Wilkerson had read the presentence report (―PSR‖). This error

warrants a remand for resentencing, Wilkerson argues, because it denied him an effective

opportunity to dispute a prior conviction that the District Court relied upon in imposing

sentence. Second, Wilkerson asserts—and the Government agrees—that an alcohol-

related provision in the written terms for supervised release is not reasonably related to

his offense or personal history. For the reasons that follow, we will affirm the sentence

of incarceration and remand for the limited purpose of striking the alcohol-related

provision.

                                              I.

         Because we write solely for the parties, we recount the facts and proceedings only

to the extent required for resolution of this appeal. On July 5, 2009, Wilkerson was

arrested after Philadelphia police received a radio call that a man attending a block party

had a firearm. When Officers Keith White and Matthew Blaszczyk arrived on the scene,

they overheard Wilkerson tell a woman that he intended to shoot an unspecified

individual. When the officers confronted Wilkerson, a foot chase ensued, and ended with

Wilkerson apparently pulling a revolver from his pocket and attempting to fire it at

Officer White. Since there were no bullets remaining in the gun, no shot was ultimately

fired.

         On March 16, 2010, a grand jury issued a one-count indictment charging

Wilkerson with possession of a firearm by a convicted felon, to which Wilkerson pled

                                              2
guilty on September 24, 2010. The Commonwealth of Pennsylvania has also charged

Wilkerson for his actions, including a felony charge of aggravated assault.1

            After Wilkerson entered his guilty plea, the U.S. Probation Office prepared a

PSR in which it determined that the total offense level was twenty-one—twenty points

for the base offense, a three-point reduction for acceptance of responsibility, and a four-

point enhancement for possessing the firearm in connection with another felony offense.

Wilkerson was also determined to have a Category III criminal history, based on his five

criminal history points. Three of Wilkerson‘s criminal history points were for a prior

robbery conviction and two were for the fact that the instant offense occurred while

Wilkerson was on probation. Based on Wilkerson‘s total offense level and criminal

history, the recommended incarceration range under the Guidelines was 46 to 57 months.

          In addition to the prior robbery conviction, the PSR listed two prior convictions

from North Carolina, one for possession of drug paraphernalia and one for carrying a

concealed weapon. The convictions, which arose from two different arrests when

Wilkerson was seventeen years old, are listed in the PSR as having been consolidated

with each resulting in a guilty plea. While the PSR provides details regarding the drug

paraphernalia charge, it notes that ―[a]ccording to the U.S. Probation Office in the

Eastern District of North Carolina, the details of the [concealed weapon] offense are

unavailable.‖ PSR ¶ 30.



1
    Wilkerson is currently awaiting trial on the state charges.

                                                3
       After a draft copy of the PSR was sent to the parties, Wilkerson‘s attorney sent a

letter to the probation officer objecting to the four-point enhancement on the grounds that

Wilkerson did not attempt to fire his gun during the arrest. Wilkerson‘s attorney also

noted that, due to Wilkerson being transferred to an out-of-state facility, he had ―not been

able to go over the draft of the presentence report with [Wilkerson],‖ and did not know

―if [Wilkerson] will have further objections to the report.‖ A. 38.

       At the sentencing hearing, the District Court did not ask Wilkerson whether he had

personally read the PSR. The closest the District Court came to doing so was asking if

Wilkerson‘s attorney ―ha[d] an objection to that report?‖2 A. 52. Wilkerson‘s attorney

responded by reiterating his objection to the four-point enhancement.3

       Later, during Wilkerson‘s allocution, the District Court asked him the following

question: ―Why would you have a gun? You were convicted of carrying a concealed

weapon when you were 17. You were involved in robberies that put you in jail for a total




2
 The District Court‘s full inquiry was as follows: ―You have received the Pre-sentence
Investigation Report. I believe, Mr. Wilson, you have an objection to that report?‖ A.
52.
3
 To resolve defense counsel‘s objection, Officers White and Blaszczyk, as well as
Wilkerson himself, took the stand to testify about the events on the night of the arrest.
After hearing this testimony, and argument from counsel, the District Court concluded
that the Government had met its burden of proving by a preponderance of the evidence
that Wilkerson had attempted to shoot Officer White, and accordingly, that the four-point
enhancement was justified.
                                             4
of ten years and there was a weapon involved in at least one of those. Why in God‘s

name would you go out on 4th of July—with a gun?‖4 A. 112.

       After Wilkerson finished his allocution, the District Court discussed the two key

factors that justified the sentence. One factor was the serious nature of the offense.

Having heard testimony from two police officers about Wilkerson‘s attempt to fire the

gun at Officer White, the District Court described the facts and circumstances of the

offense as ―very, very serious.‖ A. 116. A second factor was Wilkerson‘s personal

history. As the District Court made clear, the ―most concerning aspect‖ of Wilkerson‘s

history was his 53 acts of misconduct while imprisoned on a prior robbery conviction—

an ―unusual situation‖ that resulted in Wilkerson serving out the full ten years of a five-

to-ten year sentence. Id. The District Court also referenced Wilkerson‘s prior robbery

offense, which involved a weapon, as well as his ―prior conviction for carrying a

concealed weapon.‖ Id.

       After the District Court referenced the concealed weapon conviction, Wilkerson

interjected: ―Not to interrupt, sir, but the prior offense for carrying a concealed weapon . .

. I was never convicted for that, anything of that nature. I was never arrested. It must be

4
  Wilkerson responded to the District Court by stating, first, that he had lied in his earlier
testimony when he had admitted an intent to shoot somebody that night. Wilkerson
stated that the reason he lied is because he thought the Government ―wanted to hear
something bad about me.‖ A. 113. Wilkerson then insisted that the real reason he had a
gun that night was because he wanted to ensure that no one got hurt. Specifically,
Wilkerson described seeing a young man place the gun in an alleyway. To protect others
who may have been injured by the gun, Wilkerson picked it up and placed it in his
pocket.

                                              5
an error on here. I was -- I was arrested for a controlled substance, yes, in North

Carolina, but not for a weapon.‖ Id. After the District Court briefly noted that

Wilkerson‘s testimony was at odds with the PSR, the probation officer described the

basis for including the conviction. The officer stated that she had ―requested a collateral

response from the District of North Carolina‖ and was informed ―that [Wilkerson] was

arrested on April 16th of 1996 for carrying a concealed weapon in the Cumberland

District Court of Fayetteville, North Carolina. On May 7th of 1996, he pled guilty and

this was consolidated for judgment with the drug conviction.‖ A. 117.

       After hearing the probation officer‘s explanation, Wilkerson asked the court

whether the concealed weapon conviction was ―supposed to be for the same time of . . .

being arrested for the controlled substance?‖ Id. The District Court briefly explained to

Wilkerson that ―[i]t was consolidated with [the drug offense] for disposition.‖ Id.

Neither Wilkerson nor his attorney pressed the issue further, and the District Court

proceeded to impose a sentence of 54 months.

       Following the hearing, the District Court issued a written sentence which

contained a term not disclosed during the sentencing hearing. The term provided that,

upon release from incarceration, Wilkerson must refrain from alcohol consumption,

submit to testing to ensure compliance, and participate in an alcohol treatment program

for the duration of his supervised release. While Wilkerson had informed the probation

officer that he often drank on a daily basis, he did not disclose any problems related to



                                             6
alcohol use, and the probation officer had not recommended any alcohol-related

conditions as part of Wilkerson‘s supervised release.

                                             II.5

       Where, as here, the defendant has not raised an issue below, we review for plain

error under Rule 52(b) of the Federal Rules of Criminal Procedure. United States v.

Stevens, 223 F.3d 239, 242 (3d Cir. 2000). Under the plain error standard of review, the

error must be ―obvious‖ and must have ―affect[ed] substantial rights.‖ United States v.

Olano, 507 U.S. 725, 734 (1993). An error affects substantial rights if the defendant can

prove that it ―affected the outcome of the district court proceedings.‖ Id. When the

alleged error, as here, involves a violation of Rule 32(i)(1)(A), we have previously

indicated that the defendant will meet his burden if he can show a ―reasonable likelihood

that the sentence would have been different‖ in the absence of the error. Stevens, 223

F.3d at 244. If a defendant is able to make this showing, this Court ―has authority to

order correction, but is not required to do so.‖ Olano, 507 U.S. at 734. A court of

appeals ―should exercise its discretion to order such a correction only if the error

‗seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.‘‖

Stevens, 223 F.3d at 242 (quoting Olano, 507 U.S. at 732).

                                             III.

       We begin our analysis by addressing Wilkerson‘s argument that we should remand

for resentencing because of the District Court‘s failure to verify that he had read the PSR.
5
 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
both 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
                                            7
While we agree that the District Court erred by failing to determine that Wilkerson read

the PSR, we will affirm the sentence of incarceration because Wilkerson has not met his

burden of proving that substantial rights were affected.

       We start by addressing whether a clear error occurred. Rule 32(i)(1)(A) provides

that a sentencing court ―must verify that the defendant and the defendant‘s attorney have

read and discussed the presentence report and any addendum to the report.‖ Fed R. Crim.

Proc. 32(i)(1)(A). While we have held that this rule does not create an ―absolute

requirement that the court personally ask the defendant‖ whether he read the PSR, we

have made clear that a sentencing court must ―somehow determine that the defendant has

had this opportunity.‖ United States v. Mays, 798 F.2d 78, 80 (3d Cir. 1986). A

sentencing court fails to discharge this obligation if it merely asks the defendant‘s

attorney if the attorney has any objections to the PSR. Stevens, 223 F.3d at 242. Since

that is precisely what the District Court did here, the District Court committed an error,

and the error was ―plain‖6—as the Government itself acknowledges.7

       We next turn to the issue of prejudice. Wilkerson makes two arguments to support

his assertion that the District Court‘s error prejudiced his rights. Wilkerson argues that



6
 In Stevens, the court asked: ―Are there any requests for additions or corrections to the
presentence?‖ 223 F.3d at 242. Here, the District Court asked Wilkerson‘s attorney
whether ―[y]ou‘ve any objections to that report?‖ A. 52.
7
 The Government concedes that the District Court committed an error. In its brief, the
Government writes: ―[T]he district court erred in not adequately verifying that the
defendant had read and discussed the PSR, and given the settled law on this issue, the
error was plain.‖ Gov‘t Br. at 21.
                                              8
we should presume prejudice just as we do for violations of the right to allocution,

because there was an opportunity for the violation to affect the outcome. In the

alternative, Wilkerson argues that the record is sufficient to demonstrate a reasonable

likelihood that the sentence would have been different had the error not occurred. We

address each argument in turn.

       Wilkerson‘s argument that prejudice should be presumed is at odds with this

Court‘s decision in Stevens where we joined the Fourth, Sixth, Seventh, Ninth, and Tenth

Circuits in holding that ―noncompliance with [Rule 32(i)(1)(A)]8 does not require vacatur

and resentencing without at least some showing of prejudice by the defendant.‖ Stevens,

223 F.3d at 246. Although Wilkerson proposes limiting the presumption to violations

where there was an opportunity for the error to affect the outcome, this would still not

harmonize with Stevens.      As Stevens indicates, a showing of prejudice requires a

―reasonable likelihood that the sentence would have been different.‖ Id. at 244. Since a

―reasonable likelihood‖ of prejudice implies a degree of persuasion distinct from, and

greater than, a mere showing of ―opportunity,‖ Stevens would appear to preclude the

presumption that Wilkerson advocates.

       Further, the case upon which Wilkerson bases his argument for a presumption,

United States v. Adams, 252 F.3d 276 (2001), is inapposite to the right at stake in Rule

32(i)(1)(A). In Adams, we held that prejudice should be presumed when a district court


8
 At the time of Stevens, the PSR verification requirement was codified as Rule
32(c)(3)(A).
                                             9
violates a defendant‘s right to allocution and an opportunity exists for the violation to

have affected the outcome. 252 F.3d at 287. As we have noted elsewhere, the right to

allocution is ―indisputably more valued and ‗deeply rooted‘9 than the verification

requirement of Rule 32.‖ Stevens, 223 F.3d at 246. The importance of the right arises

from the fact that ―[t]he most persuasive counsel may not be able to speak for a defendant

as the defendant might, with halting eloquence, speak for himself.‖ Adams, 252 F.3d at

280 (quoting Green v. United States, 365 U.S. 301, 304 (1961) (plurality opinion)).

Because of this, the Supreme Court has supported automatic resentencing when the right

to allocution is violated. Id. at 281 (discussing Hill v. United States, 368 U.S. 424, 429

n.6 (1962)). While the Supreme Court‘s subsequent jurisprudence on the plain error

standard has qualified this rule, our presumption of prejudice in Adams ―follow[ed]

logically from Supreme Court precedent.‖ Id. at 288. The same cannot be said for the

PSR verification requirement.10



9
 Whereas there was ―little consensus‖ about the need for a PSR verification requirement
until it was incorporated into the Federal Rules in 1983, the right to allocution is ―ancient
in origin‖—dating as far back as the seventeenth century, when violations of the right
required reversal on appeal. Stevens, 223 F.3d at 246.
10
   Wilkerson also points to two other decisions where this Court has extended the
presumption of prejudice. Appellant‘s Reply Br. at 2 (citing United States v. Syme, 276
F.3d 131, 153–54 (3d Cir. 2002); United States v. Knight, 266 F.3d 203, 208 (3d. Cir.
2001)). Neither of these decisions, however, support Wilkerson‘s argument. In Syme, we
applied the presumption to constructive amendments which, unlike violations of the
allocution right, violate the U.S. Constitution. Syme, 276 F.3d at 154 n.8. Accordingly,
we noted that our holding in Syme was ―narrower‖ than our holding in Adams, since ―the
right of allocution is not grounded in the Constitution.‖ Id. In Knight, we extended the
presumption of prejudice to situations where the District Court made a clear error
                                              10
       There is, moreover, a functional basis for granting a presumption of prejudice in

the context of an allocution error, but not a Rule 32(i)(1)(A) error. The impact of

allocution is inherently intangible and generally unknowable, making it all but impossible

for a defendant to reasonably prove that an allocution would have influenced the

outcome. See Adams, 252 F.3d at 287 & n.9 (discussing ―enormous difficulty‖ of

proving prejudice in allocution context). By contrast, the impact of a Rule 32(i)(1)(A)

violation, as here, is assessed based on the impact of specific, clearly defined factual

information in the PSR. While we recognize that proving the relative impact of factual

errors on the ultimate sentence is not always a straightforward or easy task, this difficulty

inheres more in the general nature of plain error review than in the nature of the right

itself. We decline, therefore, to extend the Adams presumption to the case at bar.


       We turn then to Wilkerson‘s argument that a reasonable likelihood exists that the

sentence would have been different had Rule 32(i)(1)(A) not been violated. If he had

been given an opportunity to read the PSR, Wilkerson argues that it is ―likely‖ he would

have been able to make ―a more developed challenge‖ to the inclusion of the concealed

weapon offense. Appellant‘s Br. at 22. Wilkerson maintains that since this offense ―was

clearly important to the court,‖ id. at 23, the failure to provide him an effective

opportunity to dispute whether he was convicted—or whether the Government had met


regarding the applicable Guidelines sentence. Knight, 266 F.3d at 208. Needless to say,
a situation where the District Court applies the wrong Guidelines recommendation
creates a greater potential for prejudice than a failure to verify that a defendant read the
PSR.
                                             11
its burden of proving he was convicted—resulted in a longer sentence than would have

otherwise been the case, especially since the District Court issued a sentence on the high

end of the Guideline range. We again disagree. As we discuss below, Wilkerson has

failed to demonstrate a reasonable likelihood that (1) a more developed challenge would

have resulted in an exclusion of the offense, and that (2) exclusion of the offense would

have reduced the sentence. Since both premises are necessary for a showing of prejudice

here, Wilkerson‘s argument falls short.

       We start first with whether a ―more developed challenge‖ would have resulted in

an exclusion of the concealed weapon offense. As an initial matter, we disagree with

Wilkerson that the probation officer was ―unable to document the . . . conviction,‖ and

that the Government failed, as a result, to meet its burden of proving that it occurred.

Appellant‘s Br. at 23 (emphasis added). While the probation officer was unable to obtain

the underlying details of the offense, she was able to obtain detailed information about

the conviction itself, including the date of arrest, the date of the guilty plea, the court

where it was adjudicated, and the docket number. Further, far from being ―vague,

unsupported‖ information, Appellant‘s Reply Br. at 8, the record shows that the probation

officer obtained this information from the U.S. Probation Office in the Eastern District of

North Carolina. Although it is unclear why details for this offense were not available

when details for the drug paraphernalia offense were available, we cannot say, based on

this alone, that the information lacks ―sufficient indicia of reliability to support its

probable accuracy,‖ as is required when disputed information is considered for

                                            12
sentencing purposes. United States v. Miele, 989 F.2d 659, 664 (3d Cir. 1993) (adopting

U.S.S.G. § 6A1.3(a)).

       We are similarly unpersuaded that the PSR information became unreliable by the

mere fact that Wilkerson claims he was not convicted. For starters, we have previously

held that a defendant‘s bare allegation that information in the PSR is incorrect, without

more, is insufficient to require an evidentiary hearing to vet the information‘s accuracy.

United States v. Campbell, 295 F.3d 398, 407 (3d Cir. 2002). Thus, even if Wilkerson

had read the PSR and made a timely objection to the conviction‘s inclusion, the District

Court could still have considered it if Wilkerson‘s only evidence was his bare allegation.

The problem with relying on a defendant‘s bare allegation is particularly evident where,

as here, the defendant‘s credibility has been brought into question. Here, Wilkerson

himself admitted in his allocution that he had not been candid with the court during his

earlier testimony at the hearing. When coupled with his changing accounts of what

happened on the night of the offense, the District Court was justified in giving less weight

to Wilkerson‘s claim than to the detailed information obtained from the probation office

in North Carolina.

       It is also worth noting that the transcript of the hearing suggests that Wilkerson

may have conceded the possibility (1) that he was convicted and/or (2) that he committed

the underlying conduct. Once it was explained to Wilkerson that his weapon charge had

been consolidated with his drug charge, Wilkerson simply asked whether he had been

arrested for both offenses at the same time. When the judge responded that the two

                                            13
offenses had been consolidated for the purposes of disposition, Wilkerson did not

respond.      This indicates that Wilkerson‘s earlier denial may have simply been an

assertion that he had not been carrying a concealed weapon at the time he was arrested

for the drug offense. While not definitive, this interpretation is consistent with the fact

that Wilkerson never contended at the hearing, nor in his briefs, that he did not actually

carry a concealed weapon; his contention rather is that he had not been ―arrested‖ or

―convicted‖ for doing so. Accordingly, since the primary relevance of the conviction to

the District Court‘s decision is the underlying conduct rather than the conviction itself,

Wilkerson‘s failure to claim innocence further weakens the possibility that a more

thorough vetting would have resulted in an exclusion of the offense.

      Finally, even if we were to accept the unlikely proposition that a developed

challenge would have resulted in the weapon offense being excluded from the PSR, there

is no reasonable likelihood that this would have actually impacted the District Court‘s

sentence. The District Court did reference the concealed weapon offense as a factor in its

consideration. However, the District Court was clear that ―the most concerning aspect‖

of Wilkerson‘s criminal history was his ―unusual‖ disciplinary record in prison.

Specifically, the District Court noted Wilkerson‘s 53 acts of misconduct while in prison,

and the fact that this resulted in him serving the full ten years of a five-to-ten year

sentence.11     The District Court also emphasized the facts and circumstances of


 The District Court also referenced Wilkerson‘s prior robbery offense, which as the
11


District Court noted, also involved a weapon.
                                            14
Wilkerson‘s crime, which it described as ―very, very serious.‖             These facts and

circumstances included Wilkerson claiming he was going to shoot someone with the gun,

and Wilkerson attempting to fire the gun at Officer White during the arrest. The District

Court‘s clear concern with the serious nature of the crime and Wilkerson‘s 53 acts of

misconduct while in prison can readily explain why it chose to impose a sentence towards

the higher end of the Guidelines. Although it is conceivable that the sentence may have

been different had the District Court been convinced that the concealed weapon offense

did not occur, we do not find this possibility to be reasonably likely. Accordingly, we

will affirm.

                                             IV.

       We now address Wilkerson‘s argument concerning the alcohol-related provision

in the written sentence. Despite the fact that there was nothing in the PSR to indicate that

Wilkerson needed alcohol treatment, a special condition in the written sentence bars

Wilkerson from consuming alcohol during the supervisory release period and requires

him to submit to compliance testing and participate in alcohol treatment. Wilkerson

argues, and the Government concedes, that this is not reasonably related to either the

offense or Wilkerson‘s history, and is therefore contrary to our ruling in United States v.

Pruden, 398 F.3d 241, 248–49 (3d Cir. 2005). Since the Government agrees on this

point, we need not consider Wilkerson‘s other arguments on the matter, and will remand

for the limited purpose of striking the provision from the list of conditions for

Wilkerson‘s supervised release.

                                             15
                                          V.

       For the foregoing reasons, we will affirm the appellant‘s conviction and the

District Court‘s sentence imposed on January 4, 2011 in all respects except that we will

remand for the limited purpose of striking the alcohol-related provisions from the

conditions of supervised release.




                                          16
