Panzardi-Alvarez v. United States

1991 | Cited 0 times | First Circuit | March 29, 1991

Appellant, Jose Panzardi-Alvarez, appeals from the denial of a motion for relief pursuant to 28 U.S.C. § 2255. The district court rejected appellant's claim that his sentence had been illegally imposed and that the sentencing procedures used by the trial court had violated his right to due process of law.


In 1985, appellant was indicted for violations of 18 U.S.C. §§ 241, 1513 and 2. In 1986, a superseding indictment added a count for violation of 18 U.S.C. §§ 924(c) and 2. Appellant was charged with conspiring to intimidate a potential grand jury witness; the witness had been murdered. On March 10, 1986, the day the trial was to begin, appellant agreed to plead guilty to one count of the indictment and to cooperate with the government. The government agreed to move for dismissal, with prejudice, of the remaining two counts; it also agreed to recommend that the sentence imposed under the plea agreement be served concurrently with the sentences imposed in other pending criminal cases. Appellant signed a written plea agreement, as did his lawyer.

On the same day, March 10, the district court held a change of plea hearing. In this hearing, appellant's attorney asked that he be given five days before sentencing in which to review the presentence investigation report (PSI). Appellant met with a probation officer to assist the office in preparing the PSI. In addition, appellant signed "Form PROB 13D." His signature is dated April 30, 1986, the day of the sentencing hearing. This form, entitled "Notice to Defendant Concerning the Presentence Investigation Report," also contains two boxes in the space preceding appellant's signature. These boxes bear captions that read "I have read and understand this notice" and "I have read the presentence investigation report." A check mark appears in each box. Appellant's attorney also signed the same form on April 28, 1986 and check marks appear in the identical boxes preceding the attorney's signature.

On April 30, 1986, appellant appeared for sentencing. When asked by the judge whether he required an interpreter, appellant answered in the negative. Transcript of Sentencing held on April 30, 1986, at 2 (Exhibit A in Appendix). Nonetheless, the court decided to provide such services. Id. The court, before it imposed sentence, gave appellant and his attorney an opportunity to stress appellant's cooperation with the government. Id. at 3. Appellant himself chose not to address the court, but stated that "maybe on a further occasion I would like to speak back to you." Id. at 3-4. After the court imposed sentence, it again asked for comments. Id. at 6. Appellant's counsel declined the offer. Id. The court then sentenced appellant to 99 years imprisonment. As per the plea agreement, the remaining counts were dismissed with prejudice.

On August 22, 1986, appellant, through counsel, filed a motion, pursuant to Fed. R. Crim. P. 35, for reduction of sentence. The PSI apparently was not mentioned in this motion which was denied. On February 10, 1987, appellant, pro se, filed another motion for reduction of sentence. Again, he apparently made no mention of the PSI. The district court denied this motion and, on May, 13, 1987, appellant requested reconsideration. Before the court could rule on the motion for reconsideration, appellant filed a habeas corpus motion under 28 U.S.C. § 2255. Appellant still did not mention any issues concerning the sentencing hearing. On January 28, 1988, the district court denied the § 2255 motion without a hearing. United States v. Panzardi-Alvarez, 678 F. Supp. 353 (D.P.R. 1988).

We affirmed the district court's decision without opinion on February 22, 1989. Cancel Hernandez v. United States, 873 F.2d 1433 (1st Cir. 1989); see also Panzardi-Alvarez v. United States, 879 F.2d 975 (1st Cir. 1989), cert. denied, 110 S. Ct. 1140 (1990). On October 11, 1989, appellant again moved to correct an illegal sentence under Rule 35, this time raising issues concerning the PSI and the sentencing hearing. The district court denied the motion as time-barred. We summarily affirmed the district court's decision on March 5, 1990. We did so without prejudice to the filing of a petition under 28 U.S.C. § 2255.

On March 13, 1990, appellant filed his second § 2255 motion -- the subject of this appeal. In it, he alleges that, prior to the sentencing hearing, he had not been given the opportunity to inspect the PSI in violation of Fed. R. Crim. P. 32(c)(3)(A).1 He also asserts that the district court, in violation of Rule 32(a)(1)(A),2 did not inquire whether appellant or his counsel had seen the PSI, and did not make findings concerning its reliance on the PSI in imposing sentence as required by Rule 32(c)(3)(D).3

Appellant argues that by being denied access to the PSI, he was prevented from discussing it with his counsel with a view to determining whether it contained any inaccuracies. As a result, appellant maintains, he was precluded from making any objections to the contents of the PSI at the sentencing hearing. Appellant alleges that he did not become aware of the existence of the PSI until October 1988 when he appeared before the Parole Commission. He maintains that the report, in fact, contains many inaccuracies. Attached to the § 2255 motion is a list of 18 factual disputes.

The district court denied appellant's § 2255 motion on May 24, 1990. It found that the list of alleged inaccuracies compiled by appellant amounted to "nothing more than quibbling over the specific facts underlying the offense for which he was charged." Opinion and Order at 2. The court pointed out that appellant had admitted the very facts at issue in the change of plea hearing. specifically, the court noted that appellant and his attorney had accepted, in the hearing, the government's version of the facts as presented in the change of plea hearing of codefendant Nestor M. Cancel Hernandez (Cancel). The court concluded that the PSI only presented the agreed-to facts in greater detail. As a result, the court held that to the extent it had relied on these facts, appellant was not prejudiced. The court refused to hold an evidentiary hearing.

On June 11, 1990, appellant moved for reconsideration. He stressed the argument that due to his inability to communicate in English, he had not understood what was transpiring in the change of plea hearing. The court, in denying the reconsideration motion, noted only its belief that appellant had understood everything that was spoken at the hearing. This appeal ensued.


Appellant presents several arguments in support of the contentions he made in the § 2255 motion. As for his allegation that he was sentenced without receiving the PSI, appellant claims that his signature on Form PROB 13D only was a "ministerial formality." First, he points out that the date is not in his own handwriting and that he cannot remember whether his signature was executed before or after the sentencing hearing. Second, he points out that instead of the boxes being initialed, as required by the form, they only contained check marks. He argues that no inference can be drawn from the check marks that he read the PSI. As further support for his allegation that he had not received the PSI, he claims that there was no witness to his signature. He also claims that Form PROB 13D and the PSI were in English and his native tongue is Spanish.

Next, appellant argues that the court violated Rule 32(a)(1)(A) because it never asked him or his attorney whether they had had the "opportunity to read and discuss" the PSI. Further, he asserts, there is no evidence from which the court could have inferred that appellant and his attorney had had access to the PSI. Even assuming appellant's signature on Form PROB 13D indicates that he received and read the PSI, appellant argues that he had insufficient time in which to comprehend it and to discuss it with his attorney. He emphasizes that his signature is dated April 30, 1986 -- the day of the sentencing hearing. He asserts that the delay in receiving the PSI resulted in appellant's not being able to timely object to the PSI's contents.

Appellant also asserts that even if the court could make a determination from the record that his attorney had read the PSI, the court still was obligated to ascertain whether appellant had read it. He maintains that the court should have informed him that the sentencing hearing was the only forum in which he could challenge any inaccuracies in the PSI. As a result, appellant concludes, the PSI now is "permanently tainted." Specifically, appellant points out that the Parole Commission has only the unchallenged PSI before it.

Appellant finally alleges that the district court failed to indicate whether it had relied on the PSI in imposing sentence. This, he claims, violated Rule 32(c)(3)(D). He argues, however, that because the government made no recommendation concerning sentencing when asked by the court, it must be inferred that the court, in fact, did rely on the PSI. As a result, appellant concludes, Rule 32(c)(3)(D) required the court to append to the PSI written findings concerning alleged inaccuracies in the PSI and to make a finding as to each such allegation or indicate that the court did not rely on such disputed matters.


Because this is not a direct appeal but rather a collateral proceeding under § 2255, we first must decide whether jurisdiction exists for such a challenge based on violations of Rule 32. We begin with the well-settled principle that § 2255 may not be used to present nonconstitutional claims that could have been raised on direct appeal but were not. Stone v. Powell, 428 U.S. 465, 477 n.10 (1976). Even nonconstitutional claims that could not have been asserted on direct appeal only can be raised in collateral proceedings if the alleged error is "a fundamental defect which inherently results in a complete miscarriage of justice" or is an "omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962); see United States v. Timmreck, 441 U.S. 780, 783 (1979).

In Hill, the Supreme Court considered a § 2255 petition based on an alleged violation of Rule 32(a). Petitioner claimed that the trial court at sentencing had failed to ask him whether he wished to make a statement. The Court held that collateral relief was not available because all petitioner could show was a failure of the trial court to comply with the "formal requirements" of Rule 32. Id. at 429. Such a circumstance does not rise to the level of a fundamental defect which results in a complete miscarriage of justice. Id. at 428-29; see Timmreck, 441 U.S. at 785 (a failure by trial court to follow formal requirements of Fed. R. Crim. P. 11 could not support a § 2255 petition). The Hill Court did not decide whether § 2255 relief would be available if a Rule 32(a) violation occurred "in the context of other aggravating circumstances. . . ." 368 U.S. at 429.

The issue, then, is not whether the court violated Rule 32, but whether the alleged errors amounted to "fundamental defects" which resulted in a "complete miscarriage of justice." See Hill, 368 U.S. at 428; Poor Thunder v. United States, 810 F.2d 817, 821-22 (8th Cir. 1987); cf. Johnson v. United States, 805 F.2d 1284, 1287 (7th Cir. 1986) (violation of Rule 32 will support a collateral attack only where alleged error violated due process of law -- essentially equivalent to a miscarriage of justice). In Hill, the Court pointed out that the defendant had not claimed that he was affirmatively denied a chance to speak or that the trial court had sentenced him based on misinformation. 368 U.S. at 429.

Courts have recognized that a failure to follow the requirements of Rule 32(c)(3)(D) may violate the due process clause of the Constitution and, thus, may be cognizable on a collateral attack under § 2255. See Poor Thunder, 810 F.2d at 822; Johnson, 805 F.2d at 1288. This Rule

is designed to safeguard the right, held to be contained in that Clause, see Townsend v. Burke, 334 U.S. 736, 740 . . . (1948), that defendants be sentenced on the basis of materially accurate facts, or at any rate that they not be sentenced on the basis of any facts until a fair process for determining accuracy has been made available.

Poor Thunder, 810 F.2d at 822. To the extent that appellant alleges that he was sentenced on the basis of serious factual inaccuracies, § 2255 provides a proper vehicle for such a claim.4

This, however, does not mean that § 2255 actually is available in this particular case. The question remains whether appellant has waived this claim by failing to present it on direct appeal or in one of the timely motions he filed pursuant to Rule 35. To obtain collateral relief in this situation, appellant must show "cause" for this procedural default and "actual prejudice" due to the errors of which he now complains. See United States v. Frady, 456 U.S. 152, 167-68 (1982). Appellant claims that he was not aware of the contents of the PSI until July 1988 when he appeared before the Parole Commission. This date is after the time for direct appeal expired and is subsequent to the dates the 1986 and 1987 Rule 35 motions were filed.

However, we question whether appellant can show "cause" sufficient to excuse his procedural default. First, there is direct evidence that appellant had access to the PSI. Indeed, appellant signed Form PROB 13D, thereby acknowledging that he had read the PSI. Second, during the change of plea hearing, his counsel specifically requested that he (counsel) be given five days to review the PSI before sentencing. There is no evidence that counsel did not, in fact, acquire the PSI. Rather, his signature indicates that he received it two days before the sentencing hearing. Given these facts, it would be difficult to find that appellant's counsel, if not appellant himself, was prevented from raising the alleged inaccuracies in the PSI in the sentencing hearing, on direct appeal or in a Rule 35 motion. See United States v. Smith, 844 F.2d 203, 207 (5th Cir. 1988) (where defendant had seen PSI and could have taken a direct appeal concerning alleged Rule 32 violations, claim does not come within "narrow ambit" of § 2255 motion). At the very least, counsel or appellant could have asked, at sentencing, for more time in which to study the PSI.

Even assuming cause exists, our review of the merits reveals that the district court did not err in dismissing appellant's § 2255 motion.5 In reviewing the alleged inaccuracies, we keep in mind the purposes of Rule 32(c)(3)(D). First, as noted supra, the sentence imposed should be based on essentially accurate information. Second, the Rule is concerned with ensuring that the Bureau of Prisons and the Parole Commission make their determinations as to placement of prisoners and parole eligibility based on accurate information. Poor Thunder, 810 F.2d at 824 (citing Advisory Committee notes to Rule 32).

Appellant first objects to the "description of the offense" contained in the PSI. He asserts that he did not intentionally conspire with his codefendants to threaten the victim in the exercise of his right to be a witness before a grand jury, that he did not "actively" seek out the victim, and that he did not conspire to kill the victim or order anyone else to kill the victim.6 As the district court correctly states, appellant accepted, at his change of plea hearing, the government's version of the facts as presented in Cancel's change of plea hearing. In that hearing, the government stated that appellant had had "a contract to kill" the victim, had been "looking for" the victim and, in fact, had "planned" to kill him on the evening of November 9, 1985, when the victim visited his (the victim's) girlfriend. Indeed, the indictment, which also was read at Cancel's change of plea hearing, states that appellant conspired with his codefendants to so intimidate the victim and in so doing intentionally caused his death. Thus, to the extent the PSI contains this information, it cannot be considered inaccurate. Appellant, having agreed to these statements, cannot now complain that they are false. This disposes of numbers 1-4, 6, 7 and 15 of the factual disputes listed by appellant.

Additionally, appellant makes allegations concerning factual details contained in the narrative portion of the PSI and quarrels with the way the PSI presents certain events. He disputes details such as whether appellant's codefendants were also his "friends" (#5); at what time defendant became aware of the identity of the victim's girlfriend (at whose home the victim's murder took place) and from whom he received this knowledge (#8); at what exact time (early in the day or in the evening) appellant visited Cancel's home on a certain day (#9); who was present, besides appellant, at a certain conversation and at what time a codefendant smoked a marijuana cigarette (#10); and at what time an individual, another codefendant, was shown a picture of the victim by appellant (#11).

As for the way the PSI presented certain events, appellant quarrels with several statements in the PSI. He disputes the statement that Cancel "got" appellant a machine gun (#12). Rather, appellant claims that he never requested one and, in any event, the gun was unloaded. He takes issue with the statement in the PSI that appellant (who had been in the bathroom before the victim's arrival at his girlfriend's house) "came out of the bathroom with the machine gun" (#13). Although he admits he did the above, he asserts that the gun was not pointed at the victim. The PSI states that the victim put up "resistance" when appellant searched him (#14). Appellant claims that the victim put up no resistance and was shot by a codefendant "for no reason." He avers that the PSI is incorrect in stating that there was a gun found on the victim's body (#16). Appellant next argues that the PSI does not clearly describe the events subsequent to the murder, although he does not allege that the narrative is not essentially accurate (#17). Finally, appellant maintains that the PSI is "somewhat inaccurate" concerning the events surrounding the disposal of the body (#18). Again, the basic facts as presented in the PSI do not differ in any significant way from appellant's version of them in paragraph #18.

These "inaccuracies" are not the type of allegations which would require a response from a sentencing court. Poor Thunder, 810 F.2d at 825. Rather, these disputes and appellant's quarrel with the form of the PSI concern insignificant narrative detail. They are the type of detail that, in all probability, could have no impact on sentencing. See id. at 824, 826 (narrative details that could have no effect on sentencing insignificant on their face). The fact remains that what mattered for sentencing was the information in the indictment, enlarged upon by the PSI, and basically admitted by appellant -- that appellant conspired to and intended to intimidate the victim in the exercise of his constitutional rights and that such intimidation resulted in the victim's death.

The judgment of the district court is affirmed.7

1. In relevant part, Rule 32(c)(3)(A) provides that at a reasonable time before imposing sentence the court shall permit the defendant and the defendant's counsel to read the report of the presentence investigation. . . . The court shall afford the defendant and the defendant's counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it.

2. Rule 32(a)(1) provides that before imposing sentence the court shall (A) determine that the defendant and the defendant's counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision(c)(3)(A) . . . (B) afford counsel an opportunity to speak on behalf of the defendant; and (C) address the defendant personally and ask the defendant if the defendant wishes to make a statement in the defendant's own behalf and to present any information in mitigation of punishment.

3. Rule 32(c)(3)(D) provides that if the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.

4. As for appellant's allegations concerning violations of Rule 32(a)(1) and 32(c)(3)(A), we believe that they do not entail fundamental defects that could result in a miscarriage of justice. Rather, the alleged failure of the district court to ascertain whether appellant himself had read the PSI and whether he had a "reasonable time" in which to review the PSI seem to us to be, at most, alleged violations of the "formal requirements" of Rule 32. Clearly, appellant was given the right to speak on his own behalf in the sentencing hearing. See Hill, 368 U.S. at 429. Moreover, appellant's counsel requested five days in which to review the PSI. In the absence of evidence to the contrary, we assume that he did, in fact, have access to it. See Orta v. United States, 719 F. Supp 866, 869 (E.D. Mo. 1989) (where defendant, in a § 2255 motion, complains that she never saw the PSI, but where her attorney had an opportunity to examine it, such omission does not rise to level of a Rule 32 violation subject to collateral attack).

5. The issue of prejudice turns on whether the PSI contained materially inaccurate information and whether the district court relied on such information in sentencing appellant. Because the district court, in this case, reviewed the alleged inaccuracies raised in the § 2255 motion, we will address the merits without deciding the issue of prejudice. Cf. United States v. Gattas, 862 F.2d 1432, 1435 (10th Cir. 1988) (allowing § 2255 motion to proceed because cause existed based on fact that movant did not discover until his parole hearing that judge had not appended to PSI findings regarding inaccuracies in PSI; court did not discuss whether prejudice also existed); Poor Thunder, 810 F.2d at 823 (reaching merits of § 2255 motion after finding cause for procedural default, but not discussing prejudice issue).

6. Appellant also claims that PSI is inaccurate because it allegedly avers that he ordered or conspired to arrange the mutilation of the victim's body which was found dismembered. However, appellant's assertion is wrong because the PSI specifically incorporates appellant's own statement that he had not learned of the dismemberment until the day after the victim was killed.

7. To ensure that the spirit of Rule 32(c)(3)(D) is followed, we remand to the district court for the sole purpose of having it attach the list of appellant's inaccuracies and the order dismissing the § 2255 petition to the PSI.

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