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w . v i l l a no va . e du/thir dc ir c uit_2003/493NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT
No. 01-2733

UNITED S TATES OF AMERI CA

v. RUDY RAFAE L JA VIE R-C ARTAGENA, a/ k/ a FR ANCI SCO CRUZ

Rudy Rafael J avier- Cartagena,

Appellant
On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania D.C. C riminal No . 00-cr-0064 9-3 (H ono rab le W illiam H. Y ohn , Jr.)

Submitte d Pursuant to Third Circ uit LAR 34.1(a)

May 19, 2003 Be for e: S CIR ICA , Chief Judge , NY GA AR D a nd B EC KE R, Circu it Judges (Fil ed: May 29, 2003)

OPINI ON OF THE COURT1 The court al so ordere d the probat ion depart

ment to submi t a revi sed prese ntence repo rt using the hig her k ilogram amo unt. 2 SC IRI CA , Chief Judge
. This is a sentencin g appeal. De fendant Jav ier-Cartagena p led guilty without a plea agr eement to conspi

racy , 21 U.S.C. § 846, and distr ibution of her

oin within 1, 000 feet of a s chool, 21 U.S. C. § 841(a)( 1), (b)( 1)(B); 18 U. S.C. § 2. Defe ndant conte

nds the governme

nt failed to show “good ca use” for its fail

ure to timely

object to t

he drug quantity set fort h in the Pre sentenc e Invest igative Report. Asa resul

t, defenda nt contends, the Dist

rict Cour t errone ously

permitted the

governme

nt to pres ent evide

nce of drug quantit

y a t the se ntencing he aring. I. The probati on office subm itted a present ence re port on May

5, 2001, att

ributing between 40 0 and 70 0 grams of her oin to the d efendan t. The gov ernment failed to su bmit writ ten ob ject ions t o the r eport within 14 day s unde

r Fed. R. Crim. P . 32(b )(6) (B). At the sentencing hearing on June 5, 2001, the government produced evidence (in the form of testimony by a co-conspirator, R amon Fana) to estab lish the amount o f heroin at tr ib ut ab le to th e d ef en da nt wa s s ub st an ti al ly h ig he r— up to 22 gr am s o f h er oi n p er da y, not per week, as set forth in the PSI. After defendant objected, the Dist rict Court continued t

he hearing until June

15, to allow the part

ies to submit letter

briefs on t

he proposed receipt of the government’s additional evidence
. 1 On June 15, the court denied3

Javier-Carta

gena’s r equest t o limit the am

ount of attr

ibutable heroin to 700 gr

ams, the amount s tated in the May 5 present ence re port, and s entenced him to 78 m onths incarc erati on, eight y

ears s upervised relea se, and a specia l asse ssme

nt of $200. II. Under Fed. R. Crim. P. 32 the Dis trict Court has di scret

ion to hear

objections raised for the first time on the date of sentencing. Rule 32(b)(6)(B) provides that “[w]ithin 14 days after receiving the presenten ce report, the p arties shall communicate in writing to the probation officer, and to each other, any objections to any m

aterial information, sen tencing classifica tion, sentencin g guidelin e ranges . . . .” Bu t Rule 32(b)(6)(D) providesthat “[f]or good cause s hown, the cour t may allow a new objection to be raised at an y time before imposing sentenc e.” “Good cause ” is not defined by Rule 32. Gene

rally , for purpose s of Rule 32, good cause i s an expre ss, good faith explana tion for the

delay , or when failure to c onsider t he objection may

result in an erroneous sentence. III. In this case, good cause was dem onstrated. Precluding the government’s objection would have res ulted in a n erroneousquantity

of heroin and a

n erroneous sentenc e. Furthe

rmore , defendant

was on notic e as of Febr uary 20, 2001, that

the quantity of heroin was unresolved and that t he government intended to present additional evidence on the date

of sentencing.4

As the Dis trict

Court noted: It seems to the court that, a s a result of that, an d the fact that th e parties all knew, in particular, the defendant, from t he very beginning that ther e would need to be

a hearing or an agreement with refe rence t o the am ount of drug qu antities, that there wa s hearing with notice, and th at there is, therefor e, no prejudi ce to the

defendant a s a res ult of the fa ilure of t he government to file these obj ections on a timely basis—and further, I frankly have gran ted the right to file untimely objections to I guess what I wou ld ca ll an unt old numb er of def end ants in th e last ten year s, sin ce so me defense l awy ers seem to m ake a pra ctice of not filing a

ny t ill the time of the sentencing h earing. And so it seems to me that there is ample goo d cause for me to allow th e government to take the positio n that it did, an d to raise the issue after 1 4 days subsequent to the receipt of the presenten ce report. Because defendant had notice and an opportunity to be heard, a nd because refusal to hear the government’s objection would have resulted in an err oneous sentence, there was good cause for the court to exercise itsdiscretion in hearing the government’ s objection. IV. As noted, th e initial presentenc e report calculated the relevant amou nts of hero in between 400 and 700 grams. But the testimony provided by Ramon Fana at the J une 5 sentencing hearing clearly es tablished that the am ounts were significantly

higher. Based on the evid ence, the District Co urt attributed 2 .5 kilograms of heroin to eac h defend ant, increasing Javie r-Cartagena’s ex posure un der the senten cing guid elines. As noted, at th e June 15 sen tencing hear ing, the District C ourt was willin g to afford the defendant and hi s counsel , ThomasQuinn, addit ional time to c ontest t

he pro ffe red e vid ence : “Ho wev er, if , Mr. Qui nn, for any rea son you ne ed ad diti ona l time5

for any purpose in connection with this, t hat you feel was—is necessitat ed by the fact that there is such a finding, or that t here was the prior hearing, I would certa inly give t

hat to you.” Mr. Quinn ’s response wa s, “I don’t thin k there wou ld be any purpose se rved to delay the proceeding s before your ho nor.” In this case, defendant was afforded an opportunity to comment before the Dis trict Court im posed itssentenc e. In effect, the court recreat

ed the opport

unity that defendant lost due to th e belated filing of the go vernment’s obj ection. The p urpose of Rule 32 is to allow a defendant to rebut or explain the contents of presentence r eports. The court properly granted t he defendant

additiona

l tim e not only to challenge the c ourt’s r uling, but also t o challe nge the revised pre sentenc e report dated June

14, 2001. On June 15, Javier-Cartagen a declined the court’s invitatio n for a co ntinuance o r additional arg ument. The Distr ict Court would have im

posed the s ame s entence

even if the governme

nt’s objection had bee

n timely . Defendant

was not pre

judiced by

the tim ing of the governm

ent’s evidentia

ry present ation. For

these r easons, defendant wa s not prejudiced by t

he Distr ict Court ’s rec eipt of additional evidence. We see no abuse of discre tion. V. For these reasons we will affirm the judgment of conviction and sentence.6

TO THE C LERK:

Please fi le the foregoing opi nion.

/s/ Anthony J. Sciri ca

Chief Judge