Saturday, January 12, 2013

Split Noted: Does Fed. R. Crim. P. 32(i)(1)(A) require an on-the record inquiry?

Per United States v. DeLeon (1st Cir. Jan. 11, 2013)

Federal Rule of Criminal Procedure 32(i)(1)(A) provides:  "At sentencing, the court must verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum to the report."  (Emphasis added)

The split noted (p. 13-14, n.7) in this CA1 opinion is whether the verification required by Rule 32(i)(1)(A) need be explicit and on the record.  The CA1,3,5, and 6 all hold that this specific inquiry need not be explicit, so long as it is clear from the record that the defendant and the attorney have discussed the report.  The CA7 requires an explicit inquiry.

I agree with the CA7.  After all, the definition of verify is to "prove the truth of, as by evidence or testimony."  (Emphasis added.) 

That said, I dont think the split matters at allFirst, if--as per majority school--it is apparent from the record that the defendant and the attorney have discussed the report, the failure to perform an explicit inquiry is necessarily harmless and should be disregarded.  Fed. R. Crim. P. 52(a).  Second, a district court could fail to make an explicit inquiry only if there is no objection.  Thus, appellate review of this issue will always be for plain error under Fed. R. Crim. P. 52(b).

Nonetheless, I think the better rule would be to instruct district courts that it is error (albeit virtually irreversible error) not to conduct an on-the-record inquiry into whether the defendant and attorney have reviewed and discussed the PSR.  Such an instruction would allow district courts to improve their sentencing checklists, and cohere more closely with the terms of the rule.

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