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U.S. v. REYES

United States District Court, S.D. New York


August 5, 2005.

UNITED STATES of AMERICA,
v.
NELSON REYES, Defendant.

The opinion of the court was delivered by: CHARLES HAIGHT, District Judge

MEMORANDUM OPINION AND ORDER

Presently before me is a pro se motion by Nelson Reyes to correct his presentence investigation report ("PSI") pursuant to Rule 32 of the Federal Rules of Civil Procedure. On December 19, 1990, Reyes was convicted on three counts of possession with intent to distribute narcotics. The Court sentenced Reyes, on June 25, 1991, to a term of imprisonment of 292 months.

Reyes requests that the PSI be amended to indicate that he was diagnosed as an alcoholic since August 1990 and had sought treatment by a Dr. Polanco of the Surgery & Specialties Medical Center in the Durate Province of the Dominican Republic. To that effect, Reyes submits a documented letter from Dr. Polanco, as well as a literary translation, reporting the diagnosis. The Southern District of New York's Office of Probation is unable to verify the authenticity of this letter.

  Reyes seeks to amend his report fifteen years after its completion in 1990, and fourteen years after sentencing. This is the first time he has disclosed his diagnosis.

  Rule 32(c)(1) requires a probation officer to conduct a presentence investigation and submit a report to the Court prior to sentencing. Rule 32 allows parties to object to the PSI Report prior to sentencing. However, this Court has no jurisdiction to hear postsentence challenges to the PSI Report. The Second Circuit has plainly stated that "Rule 32, standing alone, does not give a district court jurisdiction to correct inaccuracies in a PSI report after a defendant has been sentenced." United States v. Giaimo, 880 F.2d 1561, 1563 (2d Cir. 1989) (citing cases). Congress provided Rule 32 as a vehicle for defendants to remedy any PSI inaccuracies at an "optimum time" — namely, "before sentence is imposed." United States v. Engs, 884 F.2d 894, 897 (5th Cir. 1989). Once sentence is imposed "the district court's jurisdiction over the defendant becomes very limited" and Rule 32 offers "no basis for empowering the sentencing court to hear postsentence challenges to the PSI report." Id. at 896 (emphasis in original). See also United States v. Huynh, No. 88 Cr. 750, 1991 WL 207511 (S.D.N.Y. Oct. 3, 1991), (citing Giaimo); United States v. Catabran, 884 F.2d 1288, 1289 (9th Cir. 1989) ("[O]nce the district court has imposed sentence, the court lacks jurisdiction under Rule 32 to hear challenges to a presentence report."); United States v. Fischer, 821 F.2d 557 (11th Cir. 1987) (same); United States v. Williams, 618 F.Supp. 1419 (E.D.Va. 1985), aff'd, 785 F.2d 306 (4th Cir. 1986) (same).

  For these reason, Reyes's motion to amend his PSI is denied.

  It is SO ORDERED.

20050805

© 1992-2005 VersusLaw Inc.



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