United States v. Warren

Filing

[10133505] Affirmed. Terminated on the merits after submissions without oral hearing. Written, signed, published. Judges Briscoe, O'Brien, and Phillips(authoring judge). Mandate to issue. [12-3136]

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PUBLISH

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FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

December 16, 2013

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.

No. 12-3136

STEVEN CARMICHAEL WARREN,
Defendant - Appellant.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:11-CR-20040-WPJ-1)

Warren R. Williamson, Federal Public Defender, and Jill M. Wichlens, Assistant Federal
Public Defender for the Office of the Federal Public Defender, Denver, Colorado, for
Defendant - Appellant.
Barry R. Grissom, United States Attorney, and Tristram W. Hunt, Assistant United States
Attorney for the Office of the United States Attorney, Kansas City, Kansas, for Plaintiff Appellee.

Before BRISCOE, Chief Circuit Judge, O’BRIEN, Senior Circuit Judge, and
PHILLIPS, Circuit Judge.

PHILLIPS, Circuit Judge.

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After examining the briefs and 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). This case is therefore
submitted without oral argument.
Appellant Steven Carmichael Warren has faced criminal charges for much of his
life. In 1998, he committed an armed bank robbery in Missouri and served about twelve
years in federal prison.1 In 2011, only one year after his release, he robbed another
bank—this one in Kansas. He pleaded guilty to this second armed bank robbery, and the
district court imposed a sentence of 25 years, the statutory maximum.
Warren now challenges the procedural reasonableness of that sentence. He
contends that he disputed the factual accuracy of statements in the presentence report and
that the district court erred by increasing his sentence after assuming the truth of those
disputed statements. However, because Warren did not raise this contention in the district
court, we review only for plain error. We find no error because Warren did not “dispute”
the presentence report so as to prevent the district court from assuming the truth of its
contents. Moreover, the district court did not rely on the sections at issue and instead
considered other factors under 18 U.S.C. § 3553 in determining that a higher sentence
was appropriate. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

1

Warren was charged with three separate Missouri bank robberies, but he pleaded
guilty to counts arising from just one of them.

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BACKGROUND
In 2011, Warren robbed the National Bank of Kansas City in Leawood, Kansas.
During the robbery, he pointed a loaded semi-automatic handgun at two teller operators
and demanded money. They complied, and Warren fled the bank with $7,030. After a
short pursuit, police apprehended Warren—along with the handgun and stolen funds.
A grand jury returned a three-count indictment, charging Warren with (1) carrying
a firearm during and in relation to and in furtherance of a crime of violence in violation
of 18 U.S.C. § 924(c), (2) armed bank robbery in violation of 18 U.S.C. § 2113(a) and
(d), and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1),
18 U.S.C. § 924(a)(2) and (e). He pleaded guilty to the armed bank robbery count, and
the government agreed to dismiss the other charges.2
Before Warren’s sentencing, a probation officer prepared a presentence report
(PSR). The PSR documented all of Warren’s prior convictions, including an earlier
federal felony conviction for armed bank robbery, a felony conviction for the sale of a
PCP-laced cigarette, a felony conviction for child abuse, and over a dozen misdemeanor
convictions—the majority of which involved violent conduct. As usual, the PSR also

2

The government’s decision to dismiss count one was significant as Warren had
been convicted of the same charge in connection with the armed bank robbery in
Missouri. A second conviction for this offense results in a statutory minimum sentence of
twenty-five years in prison. See 18 U.S.C. § 924(c)(1)(C)(i). The district court expressed
some doubt as to why this charge had been dismissed given that Warren’s guilty plea
provided a factual basis for conviction under § 924(c).

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included a section entitled “Other Criminal Conduct.” This section listed 22 of Warren’s
prior arrests and described from police reports the circumstances and conduct underlying
the majority of those arrests—none of which had resulted in conviction. After
determining that Warren qualified as a career offender, the PSR set forth an advisory
guideline range of 188–235 months in prison.3
In response to the PSR, Warren objected to his classification as a career offender.
In addition, he objected to the inclusion of paragraph 33 and paragraphs 56–76 of the
PSR, all of which described his prior arrests not resulting in conviction.4 Warren claimed
that this conduct was old and open to “different conclusions,” leaving one to “speculate
about whether these incidents truly occurred.” R. vol. 3, at 32–33.
Warren then filed a presentencing memorandum in which he did not object to the
PSR calculations but asked the court to exercise leniency and refrain from applying the
career-offender enhancement. Warren also repeated his objection to the inclusion of
“other criminal conduct” in the PSR. This time, he appeared to challenge the relevance of
this conduct on the ground that it was not sufficiently related to the offense of conviction.

3

This was based on a total offense level of 31 and a criminal history category of
VI, as determined by Warren’s career-offender status.
4

Paragraphs 56–76 made up the entire “Other Criminal Conduct” section. PSRs
regularly feature a section of this variety and, in fact, must include “any prior criminal
record” of a defendant. Fed. R. Crim. P. 32(d)(2)(A)(i); see also Fed. R. Crim. P.
32(d)(2)(G) (requiring inclusion of any “information relevant to the factors under 18
U.S.C. § 3553(a)”).

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He again stated that the other criminal conduct in the PSR was old (from 1995 or before)
and that “due to the wording of the PSR, one is left with the option to speculate whether
[the conduct] truly occurred.” R. vol. 1, at 33. Warren also argued that his other criminal
conduct should not be considered during sentencing because he “was never convicted.”
Id. at 36.
The government filed its own memorandum and argued for an upward variance
from the advisory guideline range. It relied on the 18 U.S.C. § 3553 sentencing factors—
particularly § 3553(a)(1), which requires sentencing courts to consider “the nature and
circumstances of the offense and the history and characteristics of the defendant.” Based
on the findings in the PSR, the government asserted that Warren was a “violent career
criminal” who, in addition to trafficking drugs and committing armed bank robberies, had
been convicted of violent crimes against five separate women and a child. Id. at 51. The
government asked for the statutory maximum—300 months in prison.
At sentencing, Warren renewed his objections. Once again, he argued that a
career-offender enhancement would be unduly harsh, in part, because his prior
convictions were old. He then raised the following objection to “other criminal conduct”:
There are some 20 paragraphs of conduct, that is, cases where the defendant
was either charged and they were dismissed, not prosecuted, or he actually
asserted his rights, went to trial, and received a non-guilty verdict. It cuts at
the very core of what I consider our system to be about, which is the
presumption of innocence. The mere fact that they are included in any way
shifts that from a presumption of innocence to a presumption of guilt.
These are cases that were never prosecuted, and we’re left to try to decide
why they weren’t. As the government pointed out, we don’t contest that he

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may have been charged in cases or may have been arrested, but we
wholeheartedly contest that the facts contained in this are correct.
R. vol. 2, at 54–55. Warren continued to assert that his other criminal conduct was old
and that “without having any ability to test the veracity of . . . those statements . . . you
could draw the conclusion that all those statements are false because they weren’t
prosecuted or they weren’t believed by a jury.” Id. at 56.
The district court determined that Warren was indeed a career offender and that
the PSR had correctly calculated his advisory guideline range.5 The court observed that
Warren had not received any criminal history points for several prior convictions because
they were too old. At the same time, however, the court did not feel as though Warren
had been “living an otherwise law-abiding life” for many years; he was incarcerated for
his first armed bank robbery from 1998 until 2010. Then, just one year after his release,
Warren committed the instant armed bank robbery. The court concluded that Warren was
just the type of offender Congress had in mind when it enacted the career-offender
enhancement provisions.
The court then turned to the government’s request for an upward variance and
afforded Warren another opportunity to present argument. Warren urged the district court

5

According to the PSR and pursuant to § 4B1.1(a), a career-offender enhancement
may apply only where a defendant has at least two prior felony convictions for either a
crime of violence or a controlled substance offense. Warren’s prior felony convictions for
the sale of PCP and his other armed bank robbery met this definition, as did the instant
offense.

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not to vary upward because it had already taken his criminal conduct into account in
applying the career-offender enhancement and because, once again, his convictions were
old.
After considering the § 3553 factors, the district court varied upward 65 months
above the top of the advisory range to 300 months—the statutory maximum. The court
relied primarily on the need to protect the public from Warren, stating that, given
Warren’s history, he was likely to commit more crimes unless incarcerated. The court
discussed this history at length. It acknowledged Warren’s objection that other criminal
conduct had “been placed in the [PSR]” to “paint a picture of . . . a career criminal and a
violent person.” Id. at 84. But the court observed that it had already found Warren to be a
career offender and that—importantly—his convicted conduct, standing alone, was
“overwhelming evidence” demonstrating he was a violent person. Id. The court also said
that it was “going to disregard” the other criminal conduct, even though the law permitted
it to consider such conduct under 18 U.S.C. § 3553. Id. at 75, 83–84.
Warren did not say anything after the district court resolved his “other criminal
conduct” objection. At the conclusion of the sentencing hearing, he generally stated that
he was “in disagreement with the findings,” but he did not identify the specific “findings”
at issue. Id. at 89.
On appeal, Warren contends that the district court procedurally erred by ignoring
his objection to facts in the PSR. According to Warren, the district court simply assumed

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the truth of all disputed statements regarding his prior arrests not resulting in conviction,
and then relied on those statements to impose a higher sentence.
DISCUSSION
Following United States v. Booker, 543 U.S. 220 (2005), we review “both the
reasonableness of the length of the sentence, as well as the method by which the sentence
was calculated.” United States v. Romero, 491 F.3d 1173, 1175 (10th Cir. 2007). Warren
here challenges only the method by which the district court arrived at his sentence; he
makes no argument that the length of his sentence is substantively unreasonable. His
appeal is therefore limited to a claim of procedural unreasonableness.
“A sentence is procedurally unreasonable if the district court incorrectly
calculates or fails to calculate the Guidelines sentence, treats the Guidelines as
mandatory, fails to consider the § 3553(a) factors, relies on clearly erroneous facts, or
inadequately explains the sentence.” United States v. Haley, 529 F.3d 1308, 1311 (10th
Cir. 2008) (citing Gall v. United States, 552 U.S. 38, 50–51 (2007)). Procedural
reasonableness also requires that the district court “afford[] the defendant his rights under
the Federal Rules of Criminal Procedure.” United States v. Martinez-Barragan, 545 F.3d
894, 898 (10th Cir. 2008) (alteration omitted) (quoting United States v. Geiner, 498 F.3d
1104, 1107 (10th Cir. 2007)).
1. Standard of review
Warren argues that the district court erred by “simply adopt[ing]” the PSR in full
and assuming the truth of its disputed contents. Appellant’s Br. at 6. Federal Rule of
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Criminal Procedure 32(i)(3)(B) governs this particular procedural challenge. It provides
that a sentencing court “must—for any disputed portion of the presentence report or other
controverted matter—rule on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not consider the
matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). A court does not satisfy its obligation
under the rule by “simply adopting” a disputed PSR (or any portion thereof) as its
finding. United States v. Guzman, 318 F.3d 1191, 1198 (10th Cir. 2003).
In United States v. Williamson, a defendant similarly claimed on appeal that the
district court had failed to properly resolve disputed facts under the earlier (but materially
indistinguishable) version of Rule 32(i)(3)(B). 53 F.3d 1500, 1526–27 (10th Cir. 1995).
At or before sentencing, Williamson specifically objected to a factual statement in the
PSR. Id. at 1526. The district court did not directly address Williamson’s objection at
sentencing, but it made a general finding that the “the Presentence Investigation Report,
as corrected or modified . . . and the previously stated findings are accurate.” Id. at 1526–
27. On appeal, we acknowledged that this sort of general finding as to the accuracy of
matters contained in the presentence report does not satisfy Rule 32 in the face of such a
specific factual objection. Id. at 1527. But, because Williamson had not raised “a separate
objection to the district court’s failure to make an appropriate finding under [the earlier
version of Rule 32(i)(3)(B],” our review was “limited to determining whether this alleged
failure to make a specific finding amounted to plain error.” Id. We held that any error of
the district court did not rise to this level. Id.
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We believe plain-error review is appropriate in this case as well. See United States
v. Cook, 550 F.3d 1292, 1297–98 (10th Cir. 2008) (applying plain-error review in similar
circumstances in light of Williamson). Like the defendant in Williamson, Warren made no
separate objection to the district court’s alleged failure to resolve his factual objection to
the PSR. At no time during sentencing did he speak up and say the district court had
violated Rule 32 or failed to properly resolve disputed facts. Instead, Warren merely
voiced his “disagreement with the findings” at the conclusion of the sentencing hearing.
R. vol. 2, at 89. This form objection did not alert the district court to the challenge
Warren now raises on appeal. To the contrary, Warren’s “disagreement” could have
applied to multiple “findings” at sentencing, including the court’s application of the
career-offender enhancement or statements made in discussing the § 3553 sentencing
factors.6
Indeed, our basis for applying plain-error review here is stronger than it was in
Williamson. There, the district court merely accepted the PSR without addressing
Williamson’s factual objection. By contrast, the district court in this case expressly
addressed Warren’s objection to the PSR. The court stated Warren’s objection on the
record. (He objected that other criminal conduct “[had] been placed in the [PSR]”

6

Moreover, Warren does not really take issue with the district court’s “findings”
on appeal. Instead, he simply argues that the district court improperly assumed the truth
of statements in the PSR. His challenge is thus based on the absence of factual findings,
not on any affirmative finding made by the district court.

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because it “paint[ed] a picture of . . . a career criminal and a violent person.” R. vol. 2, at
84.) It then proceeded to resolve that objection by finding (1) that Warren was a career
offender for other reasons, and (2) that his convictions provided “overwhelming
evidence” that Warren was a violent person. Id. The district court further resolved
Warren’s objection by stating its view that the law permitted it to consider prior arrests
not resulting in conviction for sentencing purposes—but that it would choose not to
consider Warren’s arrests.7 Id. at 75–76, 83–84. If Williamson had no excuse for her
failure to object when the court simply ignored her challenge to the PSR, then surely
Warren has no excuse where the district court specifically addressed his concerns with
the PSR on the record. If Warren believed the court misunderstood his objection or
otherwise failed to properly resolve it, he needed to say so then to avoid plain-error
review now.
2. The district court did not commit plain error

7

The district court specifically stated as follows:

Now, there is other criminal conduct. Paragraph 56, this was a charge of
rape. That case did go to trial; the defendant was found not guilty; so I’m
going to disregard that. And I’m going to disregard the other—although I
think the law allows me to certainly consider that in addition to the charge
in Paragraph 56 that resulted in a not-guilty verdict as well as the charges
referenced in Paragraphs 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69,
70, 71, 72, and then there’s several other arrests other than these.
R. vol. 2, at 83–84. While the district court could have been clearer in stating its
intention to disregard Warren’s other criminal conduct, we understand “disregard
the other” to mean the aforementioned “other criminal conduct.”

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“We find plain error only when there is (1) error, (2) that is plain, (3) which affects
substantial rights, and (4) which seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Romero, 491 F.3d at 1178. Upon review of the record
in this case, we conclude that Warren cannot satisfy even the first prong of plain error
because the district court did not violate Rule 32(i)(3)(B) in determining his sentence.
We review compliance with the Rules of Criminal Procedure de novo. United
States v. Cereceres-Zavala, 499 F.3d 1211, 1214 (10th Cir. 2007). As stated, Rule
32(i)(3)(B) requires a sentencing court to make one of two possible determinations
whenever any portion of a PSR is “disputed.” Fed. R. Crim. P. 32(i)(3)(B). A court must
either “rule on the dispute” or “determine that a ruling is unnecessary.” Fed. R. Crim. P.
32(i)(3)(B).
In this case, the district court arguably determined that a ruling was unnecessary as
permitted under the rule. After all, the court resolved Warren’s objection to the PSR by
stating its intention to “disregard” the “other criminal conduct.” R. vol. 2, at 83–84. Rule
32(i)(3)(B) expressly provides that a district court may determine that a ruling on a
disputed matter is unnecessary when “the court will not consider the matter at
sentencing.” Given this determination, no other ruling was necessary under Rule
32(i)(3)(B).8

8

Warren seems to equate the checked box adopting the PSR in the “Statement of
Reasons” with an affirmative factual finding that all statements in the PSR were true. If
(Continued . . .)
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To the extent that the district court’s determination could have been clearer,
Warren’s general and ill-defined objection to the PSR is to blame. After all, Rule
32(i)(3)(B) applies only if facts in the PSR are disputed by specific objection. See United
States v. Waseta, 647 F.3d 980, 989 n.6 (10th Cir. 2011) (“Though Mr. Waseta made a
general, unspecified objection to ‘allegations in the [PSR] that have been suggested as
[grounds for] a possible upward variance’ . . . this sort of general objection is inadequate
to trigger a district court’s factfinding obligation under Rule 32.” (alterations in
original)). Warren’s objection in this case was far too general, covering some “20
paragraphs” of the PSR.
Additionally, a defendant does not “dispute” a PSR’s recitation of facts underlying
his arrests unless he presents “information to cast doubt on” the facts. United States v.
Yates, 22 F.3d 981, 989 (10th Cir. 1994). If a PSR is not disputed in this fashion, it is
well established that a district court is free to rely on the PSR at sentencing. Id.; see
United States v. Mateo, 471 F.3d 1162, 1166 (10th Cir. 2006) (affirming upward variance
where the district court relied on uncontested facts included in the PSR relating to the
defendant’s prior arrests). Warren has not presented any evidence whatsoever to
contradict the information in the “Other Criminal Conduct” section of his PSR.
Finally, Rule 32(i)(3)(B) “is not a vehicle for advancing legal challenges to
sentencing,” Cereceres-Zavala, 499 F.3d at 1214, and we believe Warren’s objection was
that is his assumption, he is wrong. Further, a court’s adoption of a PSR is only
problematic if it is disputed—which, as discussed, was not the case here.

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more legal than factual.9 From the start, Warren objected to use of the “other criminal
conduct” not because he sought to correct certain factual inaccuracies, but because he
wanted it struck from the report entirely. Before sentencing, he claimed the conduct was
old, irrelevant, and subject to different interpretations. Even at sentencing, he initially
objected to the inclusion of the “some 20 paragraphs of conduct” not because it was
factually inaccurate, but because it “shift[ed] . . . a presumption of innocence to a
presumption of guilt.” R. vol. 2, at 54. Warren’s “other criminal conduct” objection thus
went to the relevance and stale nature of that conduct, as well as to the absence of
convictions in those cases. It was only at the last minute at the sentencing hearing that
Warren’s attorney said in passing: “we don’t contest that he may have been charged in
cases or may have been arrested, but we wholeheartedly contest that the facts contained
in this are correct.” Id. at 55. It is no wonder that the district court might not have
perceived Warren’s objection to be factual in nature in light of this single stray comment.
And it is no wonder that Warren failed to raise a Rule 32(i)(3)(B) objection following the
district court’s proper resolution of what had always been his objection to the PSR—
namely, that his “other criminal conduct” should be off-limits, not because it was all

9

We believe this to be the case despite Warren’s claim that the government
acknowledged that he had contested facts. At no point did the government acknowledge
or concede that Warren had contested the veracity of any fact in the “Other Criminal
Conduct” section. As quoted in the PSR, the government merely responded to Warren’s
objection to the inclusion of this section by arguing in part that Warren had previously
failed to contest (or object to) the nearly identical PSR prepared following his armed
bank robbery conviction in Missouri.

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factually untrue, but because it was old, irrelevant, or had never resulted in conviction.10
This objection does not challenge “factual inaccuracies in the report,” Cereceres-Zavala,
499 F.3d at 1214, but rather the district court’s ability to consider prior arrests not
resulting in conviction as a matter of law.
Even assuming the first two prongs of plain error, Warren cannot show that his
rights have been substantially affected as required under prong three. Even if we assumed
that Warren raised a sufficient factual objection to the accuracy of the PSR and assumed
that the district court failed to comply with Rule 32(i)(3)(B), we still would see no reason
to remand for resentencing—nothing suggests a different sentence would result.
This is all the more true given the persuasive reasons the district court gave for its
sentence, none of which depended on the specific facts underlying Warren’s “other
criminal conduct.” First, the court discussed the significance of the dismissed § 924(c)
charge under count one and the need to punish Warren for his second use of a gun during
a crime of violence. Second, the court observed Warren had spent 87% of his last 29
years either facing charges or serving a sentence of some kind—a fact Warren all but
admitted. 11 Third, the court considered that Warren had committed “strikingly similar”

10

Warren does not renew these objections to “other criminal conduct” on appeal,
although the government dedicates its response brief to the argument that prior arrests not
resulting in conviction are fair game at sentencing. Undoubtedly, the government is also
confused by Warren’s changing objection to the PSR.
11

At sentencing, Warren admitted that he “may have been charged in cases or may
(Continued . . .)
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conduct before when he had pointed a loaded handgun at multiple bank employees in
connection with his first conviction for armed bank robbery. R. vol. 2, at 62. And fourth,
from the court’s perspective, Warren’s prior convictions overwhelmingly demonstrated
he was a violent person. These were all permissible considerations under 18 U.S.C
§ 3553 and, contrary to Warren’s argument, the sentence in this case did not depend on
the “other criminal conduct” in the PSR. Indeed, the district court never made any
affirmative finding that Warren had engaged in the “other criminal conduct” or that the
facts underlying his arrests were true.
CONCLUSION
Based on the foregoing, the judgment of the district court is AFFIRMED.

have been arrested.” R. vol. 2, at 55. Similarly, he stipulated to admission of the
government’s exhibit demonstrating the percent of time he had spent either facing
charges or serving a sentence.

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