                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         MAY 19 1999
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,
              Plaintiff - Appellee,                     No. 98-5160
 v.                                               (D.C. No. 97-CR-81-BU)
 WILLIE WALTER FRISBY,                                  (N.D. Okla.)
              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, Circuit Judges.




      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

      Defendant-Appellant Willie Walter Frisby appeals his sentence on the

ground that, by failing to ascertain whether he or his counsel had read the

presentence report and failing to allow his counsel an opportunity to comment on


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
the report, the district court did not comply with Rule 32 of the Federal Rules of

Criminal Procedure.

      On August 22, 1997, Defendant was charged with knowingly executing and

attempting to execute a scheme and artifice to defraud a bank by fraudulently

cashing or causing to be cashed a forged check in the amount of $2,400 in

violation of 18 U.S.C. §§ 2(b) and 1344(1). Defendant subsequently entered a

plea of guilty to this charge. 1 The record shows that Defendant and his wife,

Bettina Lee Frisby, defrauded three of his wife’s former employers of over

$600,000 by forging and depositing checks drawn on the employers’ accounts.

Although Defendant’s participation in the fraud appears to have been less

extensive than his wife’s, Ms. Frisby made out a number of checks in Defendant’s

name. Knowing that the checks were forged, Defendant then would either cash

the checks or deposit them into a bank account. Ms. Frisby also made payable to

third parties numerous checks drawn on her employers’ accounts. The Frisbys

used these checks to pay for various goods and services which they acquired and

to pay their creditors, medical providers, and the Bankruptcy Trustee of the

Northern District of Oklahoma.


      1
       Although the information charged Defendant as a principal under 18
U.S.C. § 2(b), see R., Vol. I, Doc. 7 at 3, the judgment indicates that Defendant
pled guilty to aiding and abetting under 18 U.S.C. § 2(a). See id., Doc. 37 at 1.
This discrepancy is immaterial because in either case Defendant is punishable as a
principal. See 18 U.S.C. § 2(a)-(b).

                                         -2-
      In accordance with the recommendations set forth in the presentence report,

the district court found that Defendant’s total offense level was 18, 2 his criminal

history category was I, and the guideline range was 27 to 33 months. The court

sentenced Defendant to 30 months’ imprisonment followed by 3 years’ supervised

release and ordered him to pay restitution jointly and severally with his wife in

the amount of $537,071.79. The court further indicated that Defendant would be

given credit for any amount paid by his wife in satisfaction of the restitution

order. Defendant timely filed a notice of appeal, and we exercise jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

      In this appeal, Defendant argues that, in violation of Rule 32 of the Federal

Rules of Criminal Procedure, “the trial court made no effort to ascertain whether

[Defendant] or his counsel had read the presentence report or had any objections

to its contents.” Appellant’s Br. at 9. More specifically, Defendant claims that



      2
        Although the transcript indicates that the district court determined that the
appropriate offense level was 14, see R., Vol. IV at 5, other sources in the record
indicate that the actual offense level was 18. See, e.g., id. Vol. I, Doc. 37 at 5; id.
Vol. II at 10; Appellant’s Br. at 7. The Sentencing Guidelines, as applied in the
presentence report, confirm that the appropriate offense level is 18: the base
offense level for a violation of 18 U.S.C. § 1344 is 6, see U.S. S ENTENCING
G UIDELINES § 2F1.1(a); the offense level is increased by 8 points because the
total loss attributable to Defendant exceeds $200,000 but is less than $350,000,
see id. § 2F1.1(b)(1)(I); the offense level is increased by 2 points because the
offense involved more than minimal planning and a scheme to defraud more than
one victim, see id. § 2F1.1(b)(2); and the offense level is further increased by 2
points for obstruction of justice, see id. § 3C1.1.

                                          -3-
the court failed to verify that Defendant and his counsel read and discussed the

presentence report in violation of Rule 32(c)(3)(A) and failed to afford

Defendant’s counsel an opportunity to comment on the probation officer’s

determinations and on other matters relating to the appropriate sentence in

violation of Rule 32(c)(1). 3

      At the sentencing hearing, Defendant did not object to the district court’s

alleged violations of Rule 32. Accordingly, “our review is limited to determining

whether [these] alleged failure[s] . . . amounted to plain error, that is, an ‘obvious

and substantial’ error.” United States v. Williamson, 53 F.3d 1500, 1527 (10th

Cir.), cert. denied sub nom. Dryden v. United States, 516 U.S. 882 (1995); see

also Fed. R. Crim. P. 52(b).

      Upon a review of the sentencing hearing transcript, we conclude that the

district court satisfied the requirement of Rule 32(c)(1) by repeatedly offering

Defendant and his counsel an opportunity to comment on the sentence. The court

asked whether Defendant or his counsel had any evidence to submit to the court,


      3
        Defendant also asserts that the trial court failed to “‘give [Defendant] and
[his] counsel a reasonable opportunity to comment’” on the presentence report in
violation of Rule 32(c)(3)(A). Appellant’s Opening Br. at 9 (quoting Fed. R.
Crim. Proc. 32(c)(3)(A)). However, as a technical matter, Rule 32(c)(3)(A) only
requires the court to allow Defendant and his counsel a reasonable opportunity to
comment on any information not included in the report but on which the court
will rely in determining a sentence. See Fed. R. Crim. P. 32(c)(3)(A). Defendant
has not alleged that the court relied on such information, nor is there any
indication in the record that the court did so.

                                         -4-
see R., Vol. VI at 2 & 4, whether his counsel had “any statement . . . to

make . . . regarding [Defendant] prior to sentencing,” id. at 4, whether there was

“any reason why sentence should not be imposed,” id. at 6, and, at the end of the

hearing, whether the parties had anything further to add to the matter of

sentencing. See id. at 8. Additionally, the record reveals that there were no

objections to the presentence report on which the court was required to rule. In

light of this evidence, we conclude that the district court did not violate Rule

32(c)(1) of the Federal Rules of Criminal Procedure.

      Whether the district court violated Rule 32(c)(3)(A) is only a slightly closer

question. Our review of the sentencing hearing transcript, however, indicates that

the district court did not violate Rule 32(c)(3)(A). In fact, the first question the

court asked at the sentencing hearing was whether the parties and their

counsel—including Defendant and his counsel—had “received and review[ed] the

presentence investigation report.” R., Vol. IV at 2. Defendant’s counsel

answered “Yes” to the court’s inquiry. Id. This brief colloquy seems to satisfy

the court’s duty to verify that Defendant and his counsel read and discussed the

presentence report under Rule 32(c)(3)(A). See United States v. Rangel-Arreola,

991 F.2d 1519, 1525 (10th Cir. 1993) (holding that “the sentencing court ‘may

draw reasonable inferences from . . . the defendant’s statements[] and counsel’s

statements’ in determining whether the defendant and counsel had the opportunity


                                          -5-
to read and discuss the presentence report” (citation omitted)); United States v.

Lewis, 880 F.2d 243, 245-46 (9th Cir. 1989) (holding that rule requiring

sentencing court to determine whether defendant and his counsel read and

discussed the presentence report was satisfied when counsel told the judge that

defendant had read the report and defendant did not dispute that statement when

the court addressed defendant personally).

      Even if Defendant had succeeded in showing that the district court violated

Rule 32, he nonetheless would have to show that he was prejudiced by the Rule

32 violation before we would remand for resentencing. See United States v.

Archer, 70 F.3d 1149, 1151 (10th Cir. 1995) (citing Rangel-Arreola, 991 F.2d at

1526). Defendant claims that he “suffered demonstrable prejudice” as a result of

the court’s failure to comply with Rule 32 for two reasons. Appellant’s Br. at 10.

First, if the court had given him the opportunity, he would have objected to the

probation officer’s recommendation that he not receive a decrease in the offense

level for acceptance of responsibility. See U.S.S.G. § 3E1.1. Second, Defendant

claims that he would have objected to the amount of the restitution order if the

court had given him the opportunity to do so. Defendant asserts that if he had

been able to object on these two grounds, he would have received either a shorter

period of incarceration or would have owed a lower amount of money under the

restitution order, or both.


                                         -6-
      Defendant’s allegations of prejudice are without merit. Defendant has not

set forth any evidence supporting his claim that he should have received a

reduction for acceptance of responsibility. Although Defendant admitted

responsibility for the offenses with which he was charged by pleading guilty, his

obstruction of the pending investigation undercut any reduction he could have

received under section 3E1.1 of the Sentencing Guidelines. See id. § 3E1.1,

Application Note 4 (stating that “[c]onduct resulting in an enhancement under §

3C1.1 . . . ordinarily indicates that the defendant has not accepted responsibility

for his criminal conduct”). The probation officer’s recommendation of a two-

point increase for obstruction of justice was accepted by the district court and

Defendant does not challenge it on appeal. We think that the obstruction of

justice enhancement in this case makes clear that Defendant was not prejudiced

by any alleged Rule 32 violation.

      Defendant’s claim that he was prejudiced by the amount of the restitution

order is equally flawed. In support of this argument, Defendant alleges that he

does not have the ability to pay the restitution order because his income is too

low. In imposing a restitution order, the sentencing court need not set forth

specific findings regarding the defendant’s ability to pay “so long as sufficient

evidence [is] available to and considered by the sentencing court.” United States

v. Wiktor, 146 F.3d 815, 819 (10th Cir. 1998). In this case, evidence regarding


                                         -7-
Defendant’s ability to pay was presented in the presentence report, including

information regarding his financial status, his employment history, his educational

background, and his number of dependents. See R., Vol. II at 11-14. At the

sentencing hearing, the court referred to Defendant’s ability to pay, decided that

Defendant did not have the ability to pay a fine in addition to the restitution

order, decided not to impose restitution with respect to one of the entities

defrauded by Defendant and his wife, and reduced the amounts owed to two other

entities. See id., Vol. IV at 7-8. These statements and decisions indicate that the

court evaluated the information in the presentence report regarding Defendant’s

ability to pay. Because the court complied with Wiktor by considering the

information regarding Defendant’s ability to pay in entering the restitution order,

we cannot conclude that Defendant was prejudiced. In short, even if Defendant

had shown that the district court violated Rule 32, which he did not, he has not

alleged sufficient prejudice to justify resentencing.

      For these reasons, Defendant’s sentence is AFFIRMED.

                                                Entered for the Court



                                                Monroe G. McKay
                                                Circuit Judge




                                          -8-
