2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-27-2002

USA v. Lockovich

Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1740

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Recommended Citation

"USA v. Lockovich" (2002). 2002 Decisions. Paper 779.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/779
 NOT PRECEDENTIAL 

 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 

 No. 02-1740 

 

 

 UNITED STATES OF AMERICA 

 v. 

 JOHN J. LOCKOVICH, 

 Appellant 

 

 

 Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Criminal Action No. 01-cr-00196) 

 District Judge: Honorable Alan N. Bloch 

 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 November 21, 2002 

 

 Before: BARRY and AMBRO, Circuit Judges 

 DOWD*, District Judge 

 

 (Opinion filed November 27, 2002) 

 

 

 OPINION 

 

 *Honorable David D. Dowd, Jr., United States District Judge for the Northern 

District of Ohio, sitting by designation. 

AMBRO, Circuit Judge 

 Appellant John J. Lockovich pleaded guilty to the federal offense of submitting a 

false loan application, which he committed while on supervised release from an earlier 

conviction. The District Court sentenced Lockovich to twenty-seven months 

imprisonment and five years of supervised release. Lockovich challenges this sentence 

on appeal. His sole argument is that because the Probation Office failed to update his 

Presentence Investigation Report (PSIR) to include information from medical records he 

had provided, the District Court sentenced him on the basis of inaccurate information, 

thus violating his due process rights. We have jurisdiction pursuant to 18 U.S.C. 

3742(a)(1) and 28 U.S.C. 1291, and shall affirm. 

 I. 

 On January 28, 2002, the Probation Office sent Lockovich’s PSIR to the parties 

and the District Court. The section on his "Physical Condition" explained, in detail, that 

he suffered from an extensive number of severe medical problems. It also noted: 

 50. The defendant stated that he suffered a stroke in August 2001 due to 

 a dissected carotid artery in his neck. At the time of this interview, 

 Mr. Lockovich indicated that he expected to undergo surgery within 

 the next couple of weeks. He was asked to provide documentation 
 regarding his surgery once it was performed. To date, he has 

 provided no further information. 

 51. Also when interviewed, Mr. Lockovich indicated that he was taking 

 a variety of medications. He agreed to provide a list but has not done 

 so yet. 

Lockovich filed his response to the PSIR on February 14, 2002, attached certain medical 

records, and stated: "In view of the seriousness of this situation, it is respectfully 

requested that Lockovich be incarcerated at the Federal Prison Camp at Ashland, 

Kentucky, so that he will be close to FCI Ashland which has a major medical facility." 

 On February 21, 2002, the Probation Office sent to the parties and the District 

Court an Addendum to the PSIR. The Addendum stated that Lockovich had objected to 

the PSIR’s recommended sentence due to his ill health, and it also noted that he had 

"attached his medical records in support of his argument." The Addendum also included 

the Probation Office’s response: "[T]his man’s physical problems can be adequately 

handled by the U.S. Bureau of Prisons and should not be used as a reason to avoid 

additional imprisonment. Further, this man never supplied his medical information until 

now, despite requests by this probation officer to do so." 

 The District Court released its Tentative Findings and Rulings Concerning 

Disputed Facts or Factors on February 28, 2002. It noted that "Defendant [had] attached 

medical records" which documented his health problems, and the District Court 

recommended, as Lockovich had requested, incarceration at the institution closest to FCIAshland. On March 1, 2002, Lockovich moved for a thirty-day delay in surrender and 

sentence, and attached more medical records. The District Court denied this motion. 

 Lockovich was sentenced on March 7, 2002. The District Court stated that it "has 

also considered Defendant’s request that his serious medical problems mitigate in favor of 

imposing the term of imprisonment at this case to be served concurrent" to the term he 

received for his prior conviction. Lockovich’s counsel declined the opportunity to 

introduce any additional evidence, but she did again ask for leniency given his poor 

health. The District Court then imposed a sentence of twenty-seven months 

imprisonment and recommended that Lockovich be sent to an institution near FCIAshland. 

 II. 

 Lockovich argues that, because the Probation Office’s materials failed to reflect 

that he had submitted his medical records, the District Court sentenced him under the 

faulty impression that he had not complied with the Government’s requests for this 

information. Because Lockovich did not raise this objection before the District Court, we 

review his sentence for plain error. See United States v. Cianci, 154 F.3d 106, 111 (3d 

Cir. 1998). 

 Under that standard, "before an appellate court can correct an error not 

 raised at trial, there must be (1) error, (2) that is plain, and (3) that affect[s] 

 substantial rights. If all three conditions are met, an appellate court may 

 then exercise its discretion to notice a forfeited error, but only if (4) the 

 error seriously affect[s] the fairness, integrity, or public reputation of 

 judicial proceedings." 

United States v. Vasquez, 271 F.3d 93, 99 (3d Cir. 2001) (en banc) (quoting Johnson v. 

United States, 520 U.S. 461, 466-67 (1997)). 

 None of Lockovich’s contentions establishes error by the District Court, much less 

error that adversely affected his sentence. Lockovich’s claim that the PSIR and 

Addendum did not reflect the fact that he had submitted medical records to substantiate 

his condition is plainly contradicted by the statements in the Addendum explicitly 

recognizing that he had done so. Furthermore, the record demonstrates that the District 

Court was fully aware of and sensitive to Lockovich’s medical needs. Its tentative 

findings acknowledged that Lockovich had attached his medical documents. That the 

District Court acceded to Lockovich’s request that he be incarcerated near the medical 

facilities at FCI-Ashland indicates that Lockovich’s poor health was given due 

consideration. 

 Finally, "[i]n order to make out a due process claim, a defendant must show that 
the district court relied upon some significant piece of ’misinformation’" at sentencing. 

United States v. Spiropoulos, 976 F.2d 155, 163 (3d Cir. 1992) (quoting United States v. 

Matthews, 773 F.2d 48, 51 (3d Cir. 1985)). No misinformation existed here, as the 

District Court did not sentence Lockovich under the mistaken belief that he had refused 

the Probation Office’s entreaties to submit his medical records. As such, Lockovich’s 

due process rights were not violated. 

 III. 

 For the reasons stated above, we conclude that Lockovich was not sentenced in 

error, and we affirm the sentence imposed by the District Court. TO THE CLERK: 

 Please file the foregoing Opinion. 

 By the Court, 

 /s/ Thomas L. Ambro 

 Circuit Judge