* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 19 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-5160

v. (D.C. No. 97-CR-81-BU) WILLIE WALTER FRISBY, (N.D. Okla.)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TACHA , McKAY , and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this panel has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without ora l argument. Defendant-Appellant Willie Walter Frisby appeals hi s sentence on the ground that, by failing to ascertain whether he or his counsel had read the presentence report and failing to allow his counsel an opportunity to comment on1 Although the information charged Defendant as a pri ncipal under 18

U.S.C. § 2(b), see R., Vol. I, Doc. 7 at 3, the judgment indicates th at Defendant pled guilty to aiding and abetting under 18 U.S.C. § 2(a). See id. , Doc. 37 at 1. This discrepancy is immaterial because in either ca se Defendant is punishable as a principal. See 18 U.S.C. § 2(a)-(b). -2- the report, the district court did not comply with Rule 32 of the Federal Rules of Criminal Procedure. On August 22, 1997, Defendant was charged with know ingly executing and attempting to execute a scheme and artifice to defr aud a bank by fraudulently cashing or causing to be cashed a forged check in t he amount of $2,400 in violation of 18 U.S.C. §§ 2(b) and 1344(1). Defend ant subsequently entered a plea of guilty to this charge. 1 The record shows that Defendant and his wife, Bettina Lee Frisby, defrauded three of his wife’s f ormer employers of over $600,000 by forging and depositing checks drawn on the employers’ accounts. Although Defendant’s participation in the fraud app ears to have been less extensive than his wife’s, Ms. Frisby made out a nu mber of checks in Defendant’s name. Knowing that the checks were forged, Defendant then would either cash the checks or deposit them into a bank account. Ms . Frisby also made payable to third parties numerous checks drawn on her employer s’ accounts. The Frisbys used these checks to pay for various goods and serv ices which they acquired and to pay their creditors, medical providers, and the Bankruptcy Trustee of the Northern District of Oklahoma.2 Although the transcript indicates that the districtcourt determined that the

appropriate offense level was 14, see R., Vol. IV at 5, other sources in the record indicate that the actual offense level was 18. See , e.g. , id. Vol. I, Doc. 37 at 5; id. Vol. II at 10; Appellant’s Br. at 7. The Sentencin g Guidelines, as applied in the presentence report, confirm that the appropriate of fense level is 18: the base offense level for a violation of 18 U.S.C. § 1344 i s 6, see U.S. S ENTENCING G UIDELINES § 2F1.1(a); the offense level is increased by 8 po ints because the total loss attributable to Defendant exceeds $200,0 00 but is less than $350,000, see id. § 2F1.1(b)(1)(I); the offense level is increased b y 2 points because the offense involved more than minimal planning and a s cheme to defraud more than one victim, see id. § 2F1.1(b)(2); and the offense level is further in creased by 2 points for obstruction of justice, see id. § 3C1.1. -3- In accordance with the recommendations set forth inthe presentence report, the district court found that Defendant’s total off ense level was 18, 2 his criminal history category was I, and the guideline range was 27 to 33 months. The court sentenced Defendant to 30 months’ imprisonment foll owed by 3 years’ supervised release and ordered him to pay restitution jointly and severally with his wife in the amount of $537,071.79. The court further indic ated that Defendant would be given credit for any amount paid by his wife in sat isfaction of the restitution order. Defendant timely filed a notice of appeal, and we exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. In this appeal, Defendant argues that, in violation of Rule 32 of the Federal Rules of Criminal Procedure, “the trial court made no effort to ascertain whether [Defendant] or his counsel had read the presentence report or had any objections to its contents.” Appellant’s Br. at 9. More spec ifically, Defendant claims that3 Defendant also asserts that the trial court failed to “‘give [Defendant] and

[his] counsel a reasonable opportunity to comment’” on the presentence report in violation of Rule 32(c)(3)(A). Appellant’s Opening Br. at 9 (quoting Fed. R. Crim. Proc. 32(c)(3)(A)). However, as a technical matter, Rule 32(c)(3)(A) only requires the court to allow Defendant and his couns el a reasonable opportunity to comment on any information not included in the repo rt but on which the court will rely in determining a sentence. See Fed. R. Crim. P. 32(c)(3)(A). Defendant has not alleged that the court relied on such infor mation, nor is there any indication in the record that the court did so. -4- the court failed to verify that Defendant and his c ounsel read and discussed the presentence report in violation of Rule 32(c)(3)(A) and failed to afford Defendant’s counsel an opportunity to comment on th e probation officer’s determinations and on other matters relating to the appropriate sentence in violation of Rule 32(c)(1). 3 At the sentencing hearing, Defendant did not objectto the district court’s alleged violations of Rule 32. Accordingly, “our r eview is limited to determining whether [these] alleged failure[s] . . . amounted t o plain error, that is, an ‘obvious and substantial’ error.” United States v. Williams on , 53 F.3d 1500, 1527 (10th Cir.), cert. deniedsub nom. Dryden v. United States , 516 U.S. 882 (1995); see also Fed. R. Crim. P. 52(b). Upon a review of the sentencing hearing transcript, we conclude that the district court satisfied the requirement of Rule 32 (c)(1) by repeatedly offering Defendant and his counsel an opportunity to commenton the sentence. The court asked whether Defendant or his counsel had any evid ence to submit to the court,-5-

see R., Vol. VI at 2 & 4, whether his counsel had “any statement . . . to make . . . regarding [Defendant] prior to sentencin g,” id. at 4, whether there was “any reason why sentence should not be imposed,” id

. at 6, and, at the end of the hearing, whether the parties had anything further t o add to the matter of sentencing. See id. at 8. Additionally, the record reveals that there were no objections to the presentence report on which the c ourt was required to rule. In light of this evidence, we conclude that the distri ct court did not violate Rule 32(c)(1) of the Federal Rules of Criminal Procedure

. Whether the district court violated Rule 32(c)(3)(A ) is only a slightly closer question. Our review of the sentencing hearing transcript, however, indicates that the district court did not violate Rule 32(c)(3)(A) . In fact, the first question the court asked at the sentencing hearing was whether the parties and their counsel—including Defendant and his counsel—had “re ceived and review[ed] the presentence investigation report.” R., Vol. IV at 2. Defendant’s counsel answered “Yes” to the court’s inquiry. Id. This brief colloquy seems to satisfy the court’s duty to verify that Defendant and his c ounsel read and discussed the presentence report under Rule 32(c)(3)(A). See United States v. Rangel-Arreola , 991 F.2d 1519, 1525 (10th Cir. 1993) (holding that “the sentencing court ‘may draw reasonable inferences from . . . the defendant ’s statements[] and counsel’s statements’ in determining whether the defendant an d counsel had the opportunity-6-

to read and discuss the presentence report” (citati on omitted)); United States v. Lewis , 880 F.2d 243, 245-46 (9th Cir. 1989) (holding that rule requiring sentencing court to determine whether defendant and his counsel read and discussed the presentence report was satisfied whencounsel told the judge that defendant had read the report and defendant did notdispute that statement when the court addressed defendant personally). Even if Defendant had succeeded in showing that the district court violated Rule 32, he nonetheless would have to show that he was prejudiced by the Rule 32 violation before we would remand for resentencin g. See United States v. Archer , 70 F.3d 1149, 1151 (10th Cir. 1995) (citing Range l-Arreola , 991 F.2d at 1526). Defendant claims that he “suffered demonstr able prejudice” as a result of the court’s failure to comply with Rule 32 for two reasons. Appellant’s Br. at 10. First, if the court had given him the opportunity, he would have objected to the probation officer’s recommendation that he not rece ive a decrease in the offense level for acceptance of responsibility. See U.S.S.G. § 3E1.1. Second, Defendant claims that he would have objected to the amount of the restitution order if the court had given him the opportunity to do so. Defe ndant asserts that if he had been able to object on these two grounds, he would have received either a shorter period of incarceration or would have owed a lower amount of money under the restitution order, or both.-7-

Defendant’s allegations of prejudice are without me rit. Defendant has not set forth any evidence supporting his claim that he should have received a reduction for acceptance of responsibility. Althou gh Defendant admitted responsibility for the offenses with which he was c harged by pleading guilty, his obstruction of the pending investigation undercut any reduction he could have received under section 3E1.1 of the Sentencing Guid elines. See id. § 3E1.1, Application Note 4 (stating that “[c]onduct resulti ng in an enhancement under § 3C1.1 . . . ordinarily indicates that the defendanthas not accepted responsibility for his criminal conduct”). The probation officer’ s recommendation of a twopoint increase for obstruction of justice was accep ted by the district court and Defendant does not challenge it on appeal. We thin k that the obstruction of justice enhancement in this case makes clear that D efendant was not prejudiced by any alleged Rule 32 violation. Defendant’s claim that he was prejudiced by the amo unt of the restitution order is equally flawed. In support of this argume nt, Defendant alleges that he does not have the ability to pay the restitution or der because his income is too low. In imposing a restitution order, the sentenci ng court need not set forth specific findings regarding the defendant’s abilityto pay “so long as sufficient evidence [is] available to and considered by the se ntencing court.” United States v. Wiktor , 146 F.3d 815, 819 (10th Cir. 1998). In this case , evidence regarding-8-

Defendant’s ability to pay was presented in the pre sentence report, including information regarding his financial status, his emp loyment history, his educational background, and his number of dependents. See R., Vol. II at 11-14. At the sentencing hearing, the court referred to Defendant ’s ability to pay, decided that Defendant did not have the ability to pay a fine in addition to the restitution order, decided not to impose restitution with respe ct to one of the entities defrauded by Defendant and his wife, and reduced th e amounts owed to two other entities. See id. , Vol. IV at 7-8. These statements and decisions i ndicate that the court evaluated the information in the presentence report regarding Defendant’s ability to pay. Because the court complied with Wi ktorby considering the information regarding Defendant’s ability to pay in entering the restitution order, we cannot conclude that Defendant was prejudiced. In short, even if Defendant had shown that the district court violated Rule 32, which he did not, he has not alleged sufficient prejudice to justify resentencin g. For these reasons, Defendant’s sentence is AFFIRMED

. Entered for the Court

Monroe G. McKay Circuit Judge