US v. Ronald Daniels, Jr.

Filing 920100218

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4616

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. RONALD DANIELS, JR., a/k/a Perry Lenard Metz, a/k/a Junior Daniels, a/k/a Romello Fernandez Morton, Defendant ­ Appellant.

Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, Chief District Judge. (2:08-cr-00143-DCN-1)

Submitted:

January 27, 2010

Decided:

February 18, 2010

Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Nicole N. Mace, THE MACE FIRM, Myrtle Beach, South Carolina, for Appellant. W. Walter Wilkins, United States Attorney, Peter T. Phillips, Assistant United States Attorney, Charleston, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Ronald Daniels, Jr., pled guilty to possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g) (2006), and was sentenced to 271 months in prison. On appeal, Daniels argues that the district court

failed to conduct a proper inquiry pursuant to Rule 32 of the Federal Rules of Criminal Procedure, and requests this court to vacate his sentence and remand to the district court for

resentencing.

For the reasons that follow, we affirm Daniels's

conviction and sentence. Daniels argues only that the district court erred in failing to ensure that he had the opportunity to review his presentence report ("PSR") with his counsel prior to the

sentencing hearing. Criminal court Procedure, verify

Pursuant to Rule 32 of the Federal Rules of at the sentencing defendant hearing, and the the district

"must

that

the

defendant's

attorney have read and discussed the presentence report and any addendum to the report." Fed. R. Crim. P. 32(i)(1)(A). While

the requirement is most easily satisfied by expressly asking whether the report has been read and discussed, Rule 32 is also satisfied if "a statement by counsel or defendant . . .

unequivocally demonstrate[s] that the report has been read and discussed by them," or if court records "allow the district

court to infer that defendant and defense counsel signed out the 2

report and discussed it together." F.2d 896, 898 (4th Cir. 1988). Where counsel fails to

United States v. Miller, 849

raise

this

issue

with

the See

district court, this court's review is for plain error. United States v. Lockhart, 58 F.3d 86, 88 (4th Cir.

1995).

Accordingly, a litigant is only entitled to relief where he has demonstrated that "an error was committed," "the Id. that error was

plain," and it affected his "substantial rights." Here, the record does not clearly

demonstrate

Daniels read the PSR and discussed it with counsel before the sentencing hearing. At the sentencing hearing, the court did

not expressly ask Daniels if he had the opportunity to review the report, and nothing in the record unequivocally demonstrates that Daniels read the report or discussed it with his counsel. Rather, the court stated without any inquiry that "all parties have had access to the report," but provided no justification for this statement. As a result, the district court committed

error, and the error was plain. Nonetheless, the error affected only Daniels has failed to demonstrate In "from his that

his that

substantial he was

rights.

brief, any

Daniels argues

prevented

finding

mitigating evidence in his case and from participating in his defense." have the Daniels explains that, "[f]or example, he did not chance to determine 3 if his criminal history was

correct, and whether it was correctly calculated," and that by not being able to review the PSR he was not able to present his "complete personal, mental, and medical history to the probation officer and to the court." Despite his claims, Daniels does not assert that his criminal history actually was incorrect, or that any such error adversely claims not affected to have his had sentencing. the Similarly, to although his he full

opportunity

present

history to the probation officer, Daniels again fails to allege what information is not included in the PSR, or how it would have impacted his sentence. Daniels specifically references the

fact that his counsel raised the issue of his mental health at sentencing, but suggests that not all information about this matter was included in the PSR. Yet, the PSR contains a

detailed recitation of Daniels's mental and emotional health, his personal history, and his education and employment history. Daniels does not specify any errors or omissions in this

information or explain what supplemental information he would have conveyed that could have affected the outcome of the

sentencing hearing. no relief.

Therefore, Daniels's claim entitles him to

Accordingly, sentence. legal

we

affirm

Daniels's

conviction

and

We dispense with oral argument because the facts and are adequately 4 presented in the materials

contentions

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

5