Appeal from order of the United States District Court for the Eastern District of New York, I. Leo Glasser, J., denying appellant's motion under Fed. R. Crim. P.32 for deletion of alleged inaccuracies in a presentence report. Affirmed.
Before: FEINBERG, Chief Judge, FRIENDLY*fn* and WINTER, Circuit Judges.
Anthony Ursillo appeals from an order of the United States District Court for the Eastern District of New York, I. Leo Glasser, J., denying Ursillo's motion for deletion of alleged inaccuracies in a presentence report. Ursillo, who is presently incarcerated, filed this motion over a year after he was sentenced, alleging that the errors in the report have adversely affected his parole status. The district court held that it lacked jurisdiction to reopen the question of the accuracy of the report, and that the report was in any event correct. We affirm for the reasons stated below.
Ursillo pled guilty in April 1984 to one conspiracy count and one substantive count of receiving and transporting goods valued at over $5,000 in violation of 18 U.S.C. §§ 371 and 2315. The conspiracy count charged an extensive conspiracy to burglarize homes throughout the northeast and to transport the stolen property to appellant in Rhode Island. Ursillo's role in the conspiracy was that of a "fence," buying the proceeds from the burglars knowing that the goods were stolen. The conspiracy count listed some 61 actual and attempted burglaries as overt acts committed in furtherance of the conspiracy. The substantive count charged Ursillo with the receipt of the fruits of one of those burglaries. As part of the plea agreement, 22 other substantive counts were dismissed.
In May 1984, Ursillo was sentenced to a four-year prison term, five years' probation and a $20,000 fine. At the sentencing hearing, the judge asked Ursillo's attorney whether he had seen the presentence report, to which counsel replied, "we have, your Honor." The judge then asked whether counsel had had an opportunity to discuss the report with Ursillo. Counsel answered yes. Counsel then raised a number of objections to the report, including that the report gave the erroneous impression that Ursillo had participated directly in the 61 burglaries, and that it characterized Ursillo as an associate of organized crimes figures. The judge noted that the 61 burglaries were listed in the indictment, but said he saw nothing in the report that suggested that Ursillo "planned . . . or participated in the burglaries themselves beyond fencing the things that were taken from the various persons who were burglarized." Counsel's response was "then I am satisfied." With regard to Ursillo's associations, the judge ordered one of the statements in the report stricken and stated as to another reference that he was "not considering that." Defense counsel replied, "[a]ll right, I am satisfied." The judge then stated, in compliance with the requirements of Fed. R. Crim. P. 32(c)(3)(D),*fn1 that he would direct that a transcript of the proceedings accompany the presentence report. After the judge imposed sentence, appellant did not appeal.
In September 1984, shortly after he began serving his prison term, Ursillo filed a timely motion pursuant to Fed. R. Crim. P. 35 for a reduction in his sentence. In his petition, he asserted that he had been rated for parole purposes in the most severe offense category (property over $500,000), as if he had pled guilty to all 24 counts of the indictment rather than to only two. The district judge denied the motion, and Ursillo did not appeal.
Nearly 13 months after his original sentencing, in June 1985, Ursillo filed the present motion, apparently pursuant to Rule 32(c)(3)(D), urging the court to strike several allegedly erroneous items from the presentence report because they were "extremely prejudicial to petitioner in his application for parole consideration," particularly since he had received the severe offense rating referred to above. Now represented by new counsel, Ursillo contended that he had not had sufficient time to review the report prior to sentencing. A supporting affidavit from trial counsel stated that he and Ursillo had seen the report for the first time only one-half hour before sentencing. Ursillo also claimed that he had belatedly discovered important errors in the report, which had only come to his attention as a result of a later trial of one of his co-conspirators. Ursillo asked the judge to strike the challenged portions of the report and forward the redacted version to the Parole Commission, with a copy of the transcript of the May 1984 sentencing hearing. He advised the court, apparently for the first time, that the transcript had not been attached to the report as the judge had directed at the sentencing hearing.
The judge denied Ursillo's motion, finding that Ursillo had had sufficient time to review the presentence report, that the sentence had not been based on inaccurate information, and that, in any event, Rule 32(c)(3)(D) did not vest the court with jurisdiction to alter a presentence report at such a late date. This appeal followed.
The courts have long recognized the right of a defendant not to be sentenced on the basis of "material false assumptions as to any facts relevant to sentencing," United States v. Malcolm, 432 F.2d 809, 816 (1970); see United States v. Tucker, 404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972); Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948); United States v. Needles, 472 F.2d 652, 657 (2d Cir. 1973). Toward that end, Rule 32 has been amended several times in recent years to improve the accuracy of presentence reports. See Fed. R. Crim. P. 32, Notes of Advisory Committee on Rules. Under the 1983 amendments, the presentence report must, with certain exceptions not relevant here, be disclosed to the defendant as well as to his counsel, a reasonable time before sentencing, even in the absence of a request, Fed. R. Crim. P. 32(c)(3)(A). The sentencing judge must determine whether the defendant and his attorney "have had the opportunity to read and discuss" the report. Fed. R. Crim. P. 32(a)(1)(A). In addition, where the defendant or his counsel allege any factual inaccuracies in the report, the judge must either make a finding concerning the objection or a determination that such a finding is unnecessary because "the matter controverted will not be taken into account in sentencing." Fed. R. Crim. P. 32(c)(3)(D)(i) & (ii). The written record of such findings and determinations is to be appended to any report forwarded to the Parole Commission or the Bureau of Prisons.
Appellant argues to us, as he did to the district court, that amended Rule 32 authorizes a convicted defendant to challenge an alleged inaccuracy in a presentence report at any time after sentencing and gives the district court jurisdiction to consider the matter. The government disputes this view and argues that the district judge correctly determined that he had no jurisdiction to modify the presentence report over a year after he imposed sentence.
Appellant cites no cases to support his interpretation of the rule. Since Rule 32 was amended in 1983, numerous defendants have sought to modify or vacate a sentence based on the failure of the trial court to comply with mandated procedures, including those required by subsection (c)(3)(D). Most of those challenges, however, were raised on direct appeal of a conviction or in a motion under Fed. R. Crim. P. 35.*fn2 See, e.g., United States v. Castillo-Roman, 774, F.2d 1280 (5th Cir. 1985); United States v. Navaro, 774 F.2d 565 (2d Cir. 1985); United States v. Petitto, 767 F.2d 607 (9th Cir. 1985); United States v. O'Neill, 767 F.2d 780, 787 (11th Cir. 1985); United States v. Hill, 766 F.2d 856 (4th Cir.), cert. denied, 474 U.S. 923, 106 S. Ct. 257, 88 L. Ed. 2d 263 (1985). There are a few district court cases in which petitioners have asserted Rule 32 as a basis for jurisdiction, but these too fail to provide authority for Ursillo's claim -- either because the court rejected such jurisdiction, see United States v. Williams, 618 F. Supp. 1419 (E.D. Va. 1985), aff'd, 785 F.2d 306 (4th Cir. 1986), or because the Rule 32 challenge was combined with a claim under an independent source of jurisdiction, see United States v. ...