NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0243n.06 No. 09-5005 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. MEL ANI BU RL ESON, Def endant- Appellant. O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COU R T FOR THE WES TERN DI STRI CT OF TEN

NESSEE OP INION

/ Be fore : KENNED Y, B OGGS, and SUTTON , Circuit J udg es. CORNELIA G. KENN EDY, Circu i t Judge. Def endant- Appellant Melani Bur leson confr onted two tellers with a loaded handg un at a bank in Gadsde n, Tenne ssee. She pleade d g uilty in the United States District Court for the Wester n District of Tenne ssee to attempted arme d bank robber y , in violation of 18 U.S.C. § 2113(a) and (d), and brandishing a firea rm during and in relation to a crime of vi olence , in violation of 18 U.S.C. § 924(c)

. The dist rict c o u rt sentenc ed her to 110 months’ imprisonment followed by 5 y ear s of supervised rele ase and o rdered her to pay a $200 specia l assessment. Bur leson now appea ls her sentenc e, arguing that the di s t ri ct court violated Fe dera l Rule of Criminal Procedur e 32(i)(1) (A) by failing to v er i fy at s entenc ing that she had an opportunity to r eview her prese ntence investigation r eport (“ PSR ”) w ith her attorne y . Be cause no objection was made at sentenc ing, we revie w this claim for plan err or. See United States v. Tate , 516No. 09-5005

United States v. Burleson F.3d 459, 465-66 (6th Cir. 2008). Bur leson cannot establish that the alleg ed violation of Rule 32(i)(1) (A) a ffe cted he r substantial rig hts, and we the ref ore AF F IRM

. Rule 32(i)(1) (A) provides that, at sentenc ing, the district court “mus t v e r if y th a t th e d e f endant and the de fenda

nt’s attorney

have r ead a

nd discussed the pre sentenc e re port and a ny addendum to the repor t.” Fe d. R. Crim. P. 32(i)(1) (A). Adistrict court’s nonc ompliance with Rule 32(i)(1) (A)

mer i t s re v er s al , see United States v. Mitchell , 243 F.3d 953, 955 (6th Cir. 2001) (holding that a district court must literally comply with Rule 32(c) (3)( A), a prec ursor to Rule 32(i)(1) (A)) , but we revie w for plain err or when a defenda nt fails t o objec t t o a Rule 32(i)(1)(A) violation when given the opportunity at sentenc ing, Tate , 516 F.3d at 464, 465-66 (citing United States v. Bostic , 371 F.3d 865, 872-73 (6th Cir. 2004)). The d i s t ri ct co u rt asked at the conclusion of Burleson’s sentencing hear ing if there wer e “any other matters or obj ections [i t] failed to addre ss on behalf of the defe ndant,” to which defe nse counsel reque sted only that the district court rec ommend Bur leson be allowe d t o serve her sentenc e close to her family in Texas. [S entenc ing Hr’g Tr. 91-92, Dec

. 19, 2008, ECF No. 71.] There fore , Bur leson must show that the district court committed plain err or by failing to f

ollow Rule 32(i)(1) (A), that is, she must show an “er ror” that is “ clea

r or obvious,” that “af fec ted [her] substantial rig hts,” and that “‘se riously aff ect[ed] the fai rness, integ rity or public reputation of

judicial proce eding s.’” Puck ett v. United States , 129 S. Ct. 1423, 1429 (2009) (quoting United States v. Olano , 507 U.S. 725, 736 (1993)); see also Fe d. R. Crim. P . 52(b). To satisfy Rule 32(i)(1) (A), “[a] trial judge need not expressly ask the defe ndant if [s] he and h[er] counsel have rea d and discussed the repor t; instead, ‘the court need only somehow deter mine that defe ndant and counsel have had an opportunity to rea d and discuss the [presentenc e repor t] .’” - 2 -No. 09-5005

United States v. Burleson United States v. Osborne , 291 F.3d 908, 910 (6th Cir. 2002) (alter ation in orig inal) (quoting United States v. Steve ns , 851 F.2d 140, 143 (6th Cir. 1988)). Whil e t h e d istrict court confirme d that Bur leson’s attorney had no objections to the P S R , [ see Sentencing Hr’g Tr. 22,] it did not inquire direc tly whether Bur leson and her attorney had rea d and discussed the PSR ; Bur leson claims that the

rec ord does not otherwise demonstrate that she had the opportunity to revie w the PSR with counsel. The rec ord cer

tainly could have been clea rer on this point, but our revie w of the sentenc ing hear ing transcr ipt does not nece ssarily reve al a violation of Rule 32(i)(1) (A). Def ense counsel discussed at leng th the fac ts contained in the “off ender char ac t er i s t i cs ” section of the PSR and indicated that Bur leson did not object to the PSR ’s rec ommended g uidelines calc ulation or its rec itation of the fac ts underlying Burle son’s curr ent conviction and criminal history

. Compare Sentencing Hr’g Tr. 59, Dec

. 19, 2008, ECF No. 71 (“[W] e don’t object to the calc ulations [i n the PSR ] per se . . . . We don’t dispute that th[ e] events [ underlying the conviction] happene d as t hey ’re set forth in t he report.”) , and id. at 60 (noting that “[Burle son] obviously does not dispute the theft from her Texas employ er”

rec ounted in the PSR ), with United States v. Jeross , 521 F.3d 562, 586-8 7 (6 t h C i r. 2008) (conc luding that “the district cour t had ample g rounds on which to de termine that [defendant] and his counsel had had the opportunity to rev iew and discuss his PSR ” when, at sentenc ing, parties discuss ed a downwar d depar ture set forth in the PSR , defe nse counsel indicated that he had discussed wit h defe ndant obj ections t o cer tain information contained in the PSR , defe nse counsel explained that defe ndant understood the sentenc e rec ommended in the PSR , and defe ns e counsel confirme d that defe ndant had “withdra wn and waived all objections to the prese ntence investigation repor t in this matter” (interna l quotation marks omitted)). - 3 -No. 09-5005

United States v. Burleson Howeve r, even if the district court committed an obvious err or by failing to comply with Rule 32(i)(1) (A), Bur leson cannot demonstrate that such an err or aff ecte d her substantial rig hts. Normally , in order “to s at i s fy t h e ‘affec ting substantial rig hts’ prong of Rule 52(b),” a defe ndant “must make a specific showing of prejudice ” Olano , 507 U.S. at 735, meaning that a defe ndant must “demonstrate that [t he err or] ‘af fec ted the outcome of the district court proce eding s,’” Puck ett , 129 S. Ct. at 1429 (quoting Olano , 507 U.S. at 734). Thoug h Bur leson cl ai m s that the di strict court’s failure to confirm that she had revie wed the PSR with her attorney “pre clude[d] her from full, active participation in her sentenc ing,” [Appellant’s Br

. 13,] she does not alleg e how this may have aff ecte d the outcome of her sentenc ing. She does not dispute the fac ts p re s ented in the PSR or otherwise alleg e that she was sentenc ed based on inacc urate information. See Steve ns , 851 F.2d at 143 (identifying the interest protec t ed by Rule 32(a) (1)( A), a prec ursor to Rule 32(i)(1) (A), as “a due proce ss rig ht to a fair sentenc ing proce dure which includes the rig ht to be sentenc ed on the basis of

acc urate information”)

. I ndeed, she does not ev en cl ai m t h at she in fac t was unable to rea d and discuss the PSR with her attorney

. Cf. Tate , 516 F.3d at 466 (noting that defe ndant had stated during his sentenc ing hear ing that he had not rea d the PSR ). There fore , Bur leson cannot establish that the district court’s alleg ed violation of Rule 32(i)(1) (A) “af fec ted [her] substantial rig hts,” let alone that 1

The Supreme Court has left open the possibili ty that “‘struc tural’ err ors—those that aff ect 1 ‘the fra mework within which the trial proce eds’—a utomatically sat i s fy t h e t hird prong of the plain-er ror test.” Puck

ett , 129 S. Ct. at 1432 (quoting Arizona v. F u l mi n ante , 499 U.S. 279, 310 (1991))

. Bur leson does not argue that a violation of Rule 32(i)(1) (A) constitutes structura l err or, and we find no basis for con s i d er i n g it as such. “[P] roce dural err ors at sentenc ing

. . . are routinely subject to harmlessne ss revie w.” Id. (citing United States v. Teague , 469 F.3d 205, 209-10 (1st Cir. 2006)). - 4 -No. 09-5005

United States v. Burleson i t “‘ s er i ously aff

ect[ed] the fairne ss, integ rity or public reputation of judicial proce eding s.’” See Puck ett , 129 S. Ct . at 1429 (quoting Olano , 507 U.S. at 536). For the fore g oing r easons, the district c ourt did not plainly err by failing to ask Bur leson if she had a n opportunity

to reviewher PSR with her attorney , and we AF F IRM her se ntence

.

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