2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-30-2007

USA v. McCormick

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1251

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Recommended Citation

"USA v. McCormick" (2007). 2007 Decisions. Paper 520.

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-1251

 

UNITED STATES OF AMERICA

 v.

JAMES A. MCCORMICK,

 Appellant.

 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D. C. No. 04-cr-00215)

District Judge: Hon. Gary L. Lancaster

 

Submitted under Third Circuit LAR 34.1(a)

 on May 18, 2007

Before: FISHER and ROTH, Circuit Judges

RAMBO*, District Judge

( Opinion filed August 30, 2007)

 

O P I N I O N

 

 

*Judge Sylvia H. Rambo, United States District Judge for the Middle District of

Pennsylvania, sitting by designation. 
 The District Court found that McCormick suffered from numerous physical, 1

emotional, and mental ailments in addition to his severe alcohol addiction.

2

ROTH, Circuit Judge:

The issue presented in this appeal is whether the District Court complied with Rule

32(i)(3) of the Federal Rules of Criminal Procedure regarding objections raised by the

defendant James McCormick to his presentence report. McCormick alleges that the

District Court, in violation of Rule 32(i)(3), failed to resolve or expressly disclaim

reliance on facts in the presentence report that McCormick disputed. For the reasons set

forth below, we conclude that the District Court complied with Rule 32(i)(3), and we will

affirm its judgment of sentence.

I. Background and Procedural History

On August 24, 2004, McCormick was charged with one count of bank robbery in

violation of 18 U.S.C. § 2113(a). On July 22, 2005, he entered a plea of nolo contendre

to this charge. Both McCormick and the government reviewed McCormick’s presentence

report, but only McCormick filed objections challenging certain portions of the report. At

the sentencing hearing, the District Court accepted only one of McCormick’s objections

which lowered his base offense level by three points. With that, and one other additional

finding, the District Court adopted the findings of the presentence report. Given 1

McCormick’s offense level and criminal history, his advisory guidelines sentence was 46

to 57 months. After taking into consideration the sentencing factors under 18 U.S.C. §
3

3553(a), the District Court imposed on McCormick a sentence of 46 months. McCormick

timely filed this appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over this matter pursuant to 18 U.S.C. § 3231. 

This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. 

In an appeal of the District Court’s alleged violation of Rule 32(i)(3), we grant

plenary review. United States v. Electrodyne Sys. Corp., 147 F.3d 250, 252 (3d Cir.

1998). 

III. Analysis

Rule 32(i)(3) states that, at sentencing, a court “must, for any disputed portion of

the presentence report or other controverted matter, rule on the dispute or determine that a

ruling is unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” Although Rule 32(i)(1) allows the 

court to adopt any undisputed portion of the presentence report as a finding of fact, it

must make an express finding on a disputed fact or disclaim reliance upon a disputed fact

in sentencing a defendant. Electrodyne Sys. Corp., 147 F.3d at 255. 

Here, McCormick alleges that the objections he filed to the presentence report

raised factual disputes that were not expressly resolved or disclaimed by the District

Court. Although he filed a great number of objections to almost every paragraph of the

presentence report, as McCormick concedes, many of these do not raise any disputes of
4

fact and need not have been addressed by the District Court. In its sentencing transcript,

the District Court specifically stated that “it adopted the findings of the presentence report

with just two modifications: (1) it would favorably grant a three-point reduction for

acceptance of responsibility and (2) McCormick had numerous ailments.” The court

determined, however, that in spite of these ailments it would give no additional departure. 

We conclude from the above that the District Court resolved the objections, rejecting all

but two of them, and was not in violation of Rule 32(i)(3). 

IV. Conclusion

For the reasons set forth above, we will affirm the judgment of sentence.