FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 08, 2007

THOMAS K. KAHN

CLERK

 Honorable Clay D. Land, United States District Judge for the Middle District of *

Georgia, sitting by designation. 

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-15757

________________________

D. C. Docket No. 06-00022-CR-1-CLS-RRA

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

CARLOSE DUPREE MCELRATH, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Alabama

_________________________

(November 8, 2007)

Before MARCUS and PRYOR, Circuit Judges, and LAND, District Judge. *

PER CURIAM:

Carlose Dupree McElrath (“McElrath”) appeals from his 188-month
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sentence after pleading guilty to conspiracy to distribute 5 grams or more of

cocaine base, in violation of Title 21, United States Code, Sections 841(a)(1) and

(b)(1)(B), and to distribution of 50 grams or more of cocaine base, in violation of

Title 21, United States Code, Sections 841(a)(1) and (b)(1)(A). At issue on appeal

is whether we should remand the case for re-sentencing simply because the district

court did not sua sponte postpone sentencing when the Defendant and his counsel

received a revised Presentence Investigation Report (“PSI”) the same day as the

sentencing hearing. McElrath contends that he was denied his due process rights,

and his statutory rights under Federal Rule of Criminal Procedure 32(e)(2) to

receive the PSI at least thirty-five days before sentencing, and under Rule

32(i)(1)(A) to have the district court verify that the defendant and the defendant’s

attorney have read and discussed the presentence report and any addendum to the

report. After thorough review, we can find no plain error, and therefore, affirm.

I. 

The grand jury charged McElrath and his co-defendant Terrence Clevon

Moon, who is not involved in this appeal, with conspiracy to distribute and the

substantive crime of distribution of crack cocaine. Specifically, McElrath and his

co-defendant were charged in Count One with conspiracy to “distribute 5 grams or

more of a mixture and substance containing a detectable amount of cocaine base,
 In the plea agreement, McElrath also waived his right to appeal, although he reserved 1

the right to appeal a punishment that either exceeded the statutory maximum or constituted an

upward departure from the guideline sentencing range. The Government initially moved to dismiss

this appeal on the basis of the appeal waiver, but has subsequently withdrawn its motion. The

applicability of the appeal waiver is accordingly now moot and we focus only on the Defendant’s

substantive claim. 

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more commonly referred to as ‘crack’ cocaine, a controlled substance, in violation

of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(B), all in violation of

Title 21, United States Code, Section 846.” Count Two pertained only to codefendant Moon. Count Three charged McElrath with “knowingly, intentionally,

and unlawfully distribut[ing] 50 grams or more of a mixture and substance

containing a detectible amount of cocaine base” on or about November 14, 2005, a

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Count Four similarly charged

McElrath with distributing 50 grams or more of a mixture containing cocaine base

on or about December 13, 2005, in violation of Title 21, United States Code,

Sections 841(a)(1) and (b)(1)(A). 

At his arraignment, McElrath originally pled not guilty to the three charges

leveled against him, but at a hearing on March 16, 2006, he entered pleas of guilty

to Counts One and Three. As part of the plea deal, the Government agreed to (1) 1

move that Count Four be dismissed; (2) recommend that McElrath receive a threelevel reduction from guideline offense level 32 to 29 for acceptance of

responsibility; (3) recommend that McElrath be sentenced at the low end of the
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advisory guideline range; and (4) consider filing a motion for downward departure

under U.S.S.G. 5k1.1 and 18 U.S.C. § 3553(e). During this change-of-plea hearing,

the district court questioned the Defendant extensively about his competency, the

voluntariness of his plea, and his understanding of the charges to which he was

pleading guilty. 

The Government offered the following factual foundation for McElrath’s

guilty pleas. On November 1, 2005, a confidential source (“CS”) telephoned

Carlose McElrath and arranged for the purchase of 1 1/4 ounces of crack cocaine.

The CS later traveled to the meeting location, at 539 Garrett Road, Sylacauga,

Alabama, and advised the agents in charge of the case that the vehicle of Terrence

Moon was at the residence. Moments later, McElrath and Moon drove up to the

residence in a white Lincoln. McElrath informed the CS that he had the ounce of

crack but that the CS would have to go get it from Moon at the “trap.” (The trap is

a drug-dealing location used to avoid association with the drug dealers.) The CS

traveled to the trap, met with Moon and purchased one ounce of crack cocaine for

$850. McElrath then called the CS to report that the 1/4 ounce that remained of the

transaction would arrive at the location shortly. The agents later retrieved the crack

cocaine, which weighed 31.1 grams. 

On November 14, 2005, the CS arranged to consummate another transaction
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to buy crack cocaine from McElrath for $1,575. During a telephone call with

McElrath, the CS was told that the “toolbox” -- i.e., two ounces of crack -- would

be ready shortly. McElrath then told the CS to meet him “up top,” which was a

code for McElrath’s “trap” on Coleman Road in Sylacauga. The CS and McElrath

later met at the location on Coleman Road and transacted the two ounce purchase

and sale of cocaine. The crack cocaine subsequently retrieved weighed 57.6 grams.

McElrath’s initial PSI, disclosed to the parties on May 24, 2006,

recommended granting McElrath a three-level reduction in his offense level for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, and in accordance with

the plea agreement. On June 20, 2006, however, a revised PSI report was prepared

denying the three-level reduction because of two drug offenses that McElrath

committed after entering a guilty plea. First, on May 10, 2006, McElrath sold

approximately one ounce of crack cocaine to a cooperating individual, resulting in

the revocation of his bond. Second, on May 17, 2006, McElrath’s urine tested

positive for Hydrocodone and Hydromorphone. The revised PSI was not

disclosed, however, to the district court, McElrath, or his defense counsel, until the

day of the sentencing hearing, held on October 20, 2006. 

After becoming aware at the sentencing hearing of the revised PSI, the

district court directed that the Defendant and his counsel receive a copy, and then
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proceeded to explain the differences between the initial and revised PSIs to the

Defendant. The changes in the PSI were limited to McElrath’s intervening criminal

conduct and the accompanying denial of a three-level reduction in his offense level

calculation for acceptance of responsibility. The district court gave the Defendant

an opportunity to object to the denial of a three-level adjustment for acceptance of

responsibility. 

Accepting the district court’s invitation, McElrath did object to the change.

But, notably, the Defendant did not object to the fact that he had not previously

received a copy of the revised PSI. McElrath thus never requested a continuance of

the sentencing proceedings. Indeed, he never said that his rights were in any way

prejudiced by the failure to grant a continuance. 

The district court overruled McElrath’s objection to the denial of the threelevel adjustment, instead adopting the revised PSI and making a finding that the

guideline offense level was 32 and the criminal history category was III, resulting

in a sentencing guideline range of 151 to 188 months’ imprisonment. The district

court also explained that it was going forward with the sentencing out of fairness

for the Defendant because McElrath was scheduled to be sentenced the same day in

front of another district court judge for other crimes, noting that: 

postponing your sentence until after the sentencing proceeding

scheduled for 2:00 o’clock today before Judge Clemon would have
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resulted in an increase in your criminal history category. And if it had

gone up to -- let’s just say a IV with an offense level of 32, you’d be

looking at 168 to 210 months. 

The district court thereafter sentenced McElrath to 188 months imprisonment. This

timely appeal followed. 

II.

Because McElrath did not raise an objection at sentencing to the late

disclosure of the revised PSI, we will review his claim only for plain error. See

United States v. Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005). Under the plain

error standard of review, we will reverse a district court decision only if (1) an

error was committed; (2) the error was plain; and (3) the error affected the

substantial rights of the defendant. United States v. Olano, 507 U.S. 725, 732

(1993). An error affects a defendant’s substantial rights if the error was prejudicial

and affected the outcome of the district court proceedings. Id. at 734. If we

discover a plain error that affects substantial rights, we will remand for a correction

of the error only if the error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. at 736 (alteration in original). The burden

rests with the movant (here the Defendant) to establish each element of plain error

by a preponderance of the evidence. United States v. Rodriguez, 398 F.3d 1291,

1299 (11th Cir. 2005). 
 Rule 32(e)(2) provides in pertinent part: “The probation officer must give the 2

presentence report to the defendant, the defendant’s attorney, and an attorney for the government

at least 35 days before sentencing unless the defendant waives this minimum period.”

 McElrath has not alleged a violation of either Federal Rule of Criminal Procedure 3

32(g), which provides that “[a]t least 7 days before sentencing, the probation officer must submit

to the court and to the parties the presentence report and an addendum containing any unresolved

objections, the grounds for those objections, and the probation officer’s comments on them” or 18

U.S.C. § 3552(d), which requires the court to disclose the PSI to the defendant, the defense attorney,

and the Government’s attorney at least ten days prior to the date set for sentencing. 

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McElrath claims the district court violated the Due Process Clause, as well

as Federal Rule of Criminal Procedure 32(e)(2), which requires the probation 2

officer to furnish the PSI to the defendant at least thirty-five days before the

sentencing hearing unless the defendant waives this minimum period, and Rule

32(i)(1)(A), which, in turn, requires a court before imposing sentence to “verify

that the defendant and the defendant’s attorney have read and discussed the

presentence report and any addendum to the report.” 

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The district court noted that Rule 32(e)(2) applies only to the original PSI

and not to the revised PSI. Since the original PSI was disclosed to the Defendant

more than thirty-five days before sentencing, the Government argues that Rule

32(e)(2) was not violated. A careful reading of other provisions in Rule 32

suggests that is the case. Rule 32(f) gives the parties an opportunity to object to the

PSI within fourteen days of receiving it, and Rule 32(g) provides that at least seven

days before sentencing, the probation officer must submit to the court and to the
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parties the PSI and an addendum containing any unresolved objections, the

grounds for those objections, and the probation officer’s comments on them. Rule

32’s sequence of timing for receiving and objecting to a PSI therefore suggests that

the thirty-five day requirement applies only to the original PSI. 

However, we need not determine the applicability of Rule 32(e)(2) to a

revised PSI because, even assuming arguendo that there was an error, and that it

was plain, the Defendant has not begun to meet his burden of showing that he has

been prejudiced because the district court did not, sua sponte, postpone the

sentencing. The purpose of the thirty-five day requirement is to ensure fairness and

accuracy in sentencing by allowing the defendant adequate time to find any

objectionable recommendations in the PSI. Having objected to the only real change

from the original PSI -- the three-level adjustment for acceptance of responsibility

-- the Defendant was not prejudiced by the truncated time he had to consider the

revised PSI. Indeed, it seems, to the contrary, that the Defendant actually

benefitted from the district court’s decision not to delay proceedings because

McElrath was scheduled to be sentenced the same day in front of another district

court judge for other crimes. Had the sentencing for those other crimes taken place

first, the Defendant’s criminal-history category in this case could have changed

from a level III to at least a level IV, thereby elevating his exposure -- a point the
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district court made abundantly clear to the Defendant at the time of sentencing.

Simply put, McElrath’s substantial rights were not affected. He has shown no

prejudice. Accordingly, his claims must be denied and the sentence affirmed. 

AFFIRMED.