NOT RECOMMENDED FOR PUBLICATION File Name: 20a0353n.06
No. 19

- 3763 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. J OHNNY G. MACK , III , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

B efore : CLAY, WHITE , and READLER , Circuit Judges. CHAD A. READLER, Circuit Judge . Johnny Mack ple d gu ilty to carjacking . At Mack’s sentencing, t he district court applied a n enhancement due to Mack’s us e of a knife during the carjacking

. Mack disputes that he used a knife , and disputes whether the district court made a finding to that effect in accordance with the Federal Rule of Criminal Procedure 32

. Finding no

err or in the district court’s application of the sentencing enhancement, we AFFIRM the judgment.
I. Mack approached a woman at a gas station seemingly to ask directions. When t he woman entered her car to look up directions on her phone , Mack’s presence ma de her feel uneasy . So she

remove d a knife from her center consol e , plac ing it under her leg

. Her uneasiness was well found ed. Wielding a knife of his own , Mack would soon attempt to carjack the vehicle

. T he

woman fended off Mack with her knife , sustain ing wounds to her legs , stomach, and hands in the
process . Mack fled the scene

. He was later arrested.Case No. 19

- 3763 , United States v. Mack

2

Mack ple d guilty to carja cking , in violation of 18 U.S.C. § 2119(1). As r elevant here, Mack’s P resentence R eport (PSR) utilized a four

- level sentencing enhancement applicable when

“ a dange rous weapon was otherwise used ” in the crime. U.S.S.G. § 2B3.1(b)(2)(D). Mack filed an objection , den ying he us ed a knife in the struggle f or the car . To his mind, t he victim ’s wounds
must have resulted from her defending herself with h er own knife

. Mack re - raised his objection at sentencing

. The government introduc ed photos of the victim’s woun ds. After hearing argument from the parties and examining the pictures , t he district

co urt applied the enhancement: “ I think the knife was a dangerous weapon. And I do find that the defen dant was responsible for the knife .” Later, in considering the 18 U.S.C. § 3553 (a) sentencing factors, the court further discussed the severity of the crime, noting that Mack “used a knife in trying to carry this out.” Following additional arguments by t he parties, the court sentenced Mack
to a 120

- month, within

- G uidelines sentence. Mack timely appealed.
II. In reviewing Mack’s sentencing proceeding , we examine legal conclusions de novo and factual findings for clear error. See United States v. Kaminski , 501 F.3d 655, 665 (6th Cir. 2007). The thrust of Mack’s argument on appeal is that the district court failed to make its own factual finding at sentencing regarding Mack’s use of a knife, in violation of Federal Rule of
C riminal Procedure 32

. Ru le 32 dictates when a district court must make such findings . For sentencing matters that are undisputed, the court “ may accept any undisputed portion of the presentence report as a finding of fact .” Fed. R. Crim. P. 32(i)(3) (A)

. Not so, however, for ma tters in dispute. “[F ] or any disputed portion of the presentence report or other controverted matter ,” the court “ must

. . . rule on the dispute or determine that a ruling is unnecessary .” Fed. R. Crim. P. 32 (i)(3) (B)

. It follows that in assessing whether the district court complied with Rule 32 inCase No. 19

- 3763 , United States v. Mack

3

applying the dangerous

- weapon enhancement here , we ask first whether Mack dispute d his use of a knife

. I f so , we then ask whether t he cou rt rule d on th e disputed issue

. See United States v. Poulsen , 655 F.3d 492, 513 (6th Cir. 2011) (“First we ask whether the amount was in dispute. . .

. Second, we examine whether the district court r uled on the amount in dispute

. ”)

. 1. W hat does it mean for a defendant to put an issue “in d ispute” at sentencing ? Generally speaking, we have required a defendant to “produce some evidence that calls the reliability or correctness of the alleged facts into question .” United States v. Cover , 800 F.3d 275, 278 (6th Cir. 2015) (per curiam) (quoting United States v. Lang , 333 F.3d 678, 681 (6th Cir. 2003)). That evidence, we have explained , typically must be “more than a [defendant’s] bare denial

. ” Id. (quoting Lang , 333 F.3d at 681). “ A def endant cannot show that a PSR is inaccurate by simply denying the PSR’s truth . . . he must produce some evidence that calls the reliability or correctness of the alleged facts into question.” United States v. Adkins , 729 F.3d 559, 570 (6th Cir. 2013) (quo ting Lang , 333 F.3d at 681).
H ere, a bare denial is all Mack has mustered. While denying that he use d a knife in his carjacking attempt, he concedes he has no evidence to corroborat e that claim

. The government, on the other hand, presented photos of the victim ’ s wounds . And it offered the victim ’s statement to the police that “the knife was in the possession of the defendant.” True , Mack’s denial was
consistent through out , from arrest to sentencing

. But consistency alone does not clothe a n otherwise naked denial of the facts in the PSR

. Faced with nothing but Mack’s bare denial, the district court was free to “rely entirely on the PSR” findings at sentencing. See i d

. (noting that where the defendant made “bald assertions” and “failed to produce any evidence” regarding the truth of his underlying criminal adjudication that the district court “ properly relied on the report” ) ; Cover , 800 F.3d at 278

– 79 (finding that a ba re denial of the “accuracy of [ a PSR] statement” didCase No. 19

- 3763 , United States v. Mack

4

not place the issue in dispute where defendant “ produced nothing to contradict any of the evidence in the presentence report ” th at justified the enhancement). On occasion, it bears noting, w e have not firmly enforced the requirement that a defendant offer more than a bare denial to create a cognizable “dispute” to a PSR’s findings. But those
circumstances typically involve loss calculations or a similarly complex sentencing analysis. One example is United States v. Vanhoose , 446 F. App’x 767 (6th Cir. 2011). We held there that the district court improperly relied on the PSR where the defendant objected to the PSR’s loss calculation and requested an evidentiary hearing. Id. at 769 (explaining t hi s “trigger ed ” Rule 32 ) ;

s ee also , e.g. , United States v. Patel , 694 F. App’x 991, 995 (6th Cir. 2017) (finding that Rule 32 was “triggered” when the defendant in a fraudulent health care scheme asserted that there was no evidence that certain bills were fraudulent); United States v. Huffman , 529 F. App’x 426, 432 (6th Cir. 2013) ( requiring fact

- finding whe re a defendant in a pill

- mill scheme objected to the loss
amount and “disputed [ the ] drug

- quantity amount because some of the prescriptions were legitimate”); but see United States v. Burdette , N o . 19

- 1257, 2019 U.S. App. LEXIS 26955, at *4

– 5 (6th Cir. Sep. 5, 2019) (order) (finding that “[b]ecause [defendant] failed to produce any evide nce to support her objection, the district court was entitled to rely on the presentence report’s tax loss

amount ” )

. But that does not describe today’s case. The lone issue here is whether Mack possess ed a knife

. There are no financial calculations to m ake. Nor are there are other complex considerations regarding quantity or quality. In this straightforward setting, we routinely hold that a defendant’s bare denials do not require a specific factual finding at sentencing

. See Cover , 800 F.3d at 281

– 82 (finding that defendant’s claims that “his conviction involved a 15

- year - old victim” as opposed
to a 12

- year - old, did not create a dispute); Lang , 333 F.3d at 682 (finding that a district court couldCase No. 19

- 3763 , United States v. Mack

5

rely on the PSR when the defendant’s “attorney’s unsuppo rted letter contesting a material fact in the original PSR and denying the applicability of [ the enhancement]” was the only evidence offered); United States v. Al

- Said , No. 19

- 1504, 2020 U.S. App. LEXIS 8629, at *7

– 9 (6th Cir. Mar. 18, 2020) (order) (finding that the defendant ’s state ment that “any claims of fraud on her part are denied” was a “bare denial” and the district court appropriately relied on the presentence report (quoting Cover , 800 F.3d at 278) ); United States v. Smith , 743 F. App’x 606 , 611 (6th Cir. 2018) (finding that the defendant’s “threadbare assertion” and explicit statement that he had a “factual disagreement with [the] enhancement” was insufficient to create a dispute when compared against
other evidence); United States v. Jock , 148 F. App’x 519, 522

– 23 (6th Cir. 2005) (finding that the defendant’s attorney’s presentation of an “alternative interpretation” of the facts in a PSR and a statement that “it was not [ the defendant’s] gun” were insufficient to create a dispute)

. For th ose reasons, t he district court might well have been entitled to rely on the findings of the PSR.
2. A ssuming, for the sake of argument, that Mack did place his possession of a knife in dispute, we then ask whether “the district court

. . . actually [fo und] facts

. . . by a preponderance of the evidence .” United States v. White , 492 F.3d 380, 41 6 (6th Cir. 2007)

. T he government bears the burden of “ convinc [ing ] the court that the PSR’s facts are actually true.” Lang , 333 F.3d
at 681 (quoting United States v. Mustread , 42 F.3d 1097, 1102 (7th Cir. 1994))

. W hile the c ourt may not summarily adopt disputed PSR factual findings, “ Rule 32 does n ot dictate that the court must ‘ give a lengthy explanation for its rulin g.’” United States v. Cleveland , 677 F. App’x 210, 212 (6th Cir. 2017) (quoting United States v. Vonner , 516 F.3d 382, 388 (6th Cir. 2008) (en banc ) )

. A t Mack’s sentencing hearing , the district court mad e the appropriate finding. It stated :

“ I do find that the defendant was responsible for the knife , ” adding that Mack “ used a knife inCase No. 19

- 3763 , United States v. Mack

6

trying to carry this out.” In making that finding, t he district court considered written arguments from the parties, looked at p hotos of the victim’s wounds, and heard argument from the parties which, together, satisf

ied Rule 32. See United States v. Geerken , 506 F.3d 461, 467 (6th Cir. 2007) (finding Rule 32 satisfied whe re the court “ viewed a representative s ample of the images ” and the defendant “ produced no evidence to challenge the correctness of the factual findings of either the probatio n officer or the district court”); Cleveland , 677 F. App’ x at 2 13 (“[T]he district court

. . . ‘did not summa rily adopt the government’ s position, but heard arguments from both parties’” before it ruled on the defendant’s restitution amount (quoting United States v. Mason , 294 F. App’x 193, 201 (6th Cir. 2008) (alterations omitted ) ) )

. Not only di d t he district court “literal[ly] compl [y ]” with Rule 32, but it also satisfied the Rule’s underlying objectives , namely, to “enhance[] the accuracy of the sentence ” and create

“ clarity of the record.” White , 492 F.3d at 415 (quoting United States v. Trea dway , 328 F.3d 878, 886 (6th Cir. 2003))

. By considering written and oral arguments , reviewing photos, and stating that Mack was responsible for the knife , the district court sought to “enhance the accuracy of the sentence.” It is difficult to s ee what more the district court could have done here when, as Mack acknowledges, his “ denial was all he could do unde r the circumstances.” Nor is the re a lack of clarity as to why Mack received the sentencing enhancemen t

—he was responsible for the knife tha t harmed the victim. We thus do not see clear error in the district court’s finding that Mack was responsible for
the knife.
3. Mack also claims that the district court erred by not “ append [ing] a copy of the court’s
factual determinations to the PSR as required by Fed. R. Crim. P. 32(i)(3)(C)

. ” Mack is correct that, ordinarily, the district court “ must append a copy of the court’s determinations under this ruleCase No. 19

- 3763 , United States v. Mack

7

to any copy of the presentence report made available to the Bureau of Prisons. ” Fed. R. Crim. P. 32(i)(3)(C)

. But here, Mack d oes not allege that a n y misinformation was in fact provided to the
B ureau of P risons

. See Mason , 294 F. App’x at 202 n.3 (“ Nowhere does [ d efendant] allege that the court sent a copy of the PSR to the Bureau of Prisons without attaching a copy of the findings. ”). Nor could he, it seems , when the PSR itself fairly reflected the relevant facts that informed Mack’s sentencing

. Cf. United States v. Bart lett , 416 F. App’x 508, 512 (6th Cir. 2011) (stating that a court complies with Rule 32(i)(3)(C) when the PSR is amended to reflect a judge’s
additional findings at sentencing). I n any event, Mack does not claim that any purported error prejudiced him

. S ee Mason , 294 F

. App’x at 202 n.3 ( “ [Defendant ] alleges no prejudice as a result of any such failure, making remand unnecessary .”); United States v. Lantz , 443 F. App’x 135, 147 (6th Cir. 2011) (same)

. We thus see no error in this context either. CONCLUSION For the foregoing reasons, we AFFIRM the judgment of the district court.