UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1086
In Re: WAYNE BROCK,
Petitioner.
On Petition for Writ of Mandamus. (1:06-cr-00135-WMN)
Submitted: January 28, 2008 Decided: January 31, 2008
Before WILLIAMS, Chief Judge, and KING and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Russell P. Butler, MARYLAND CRIME VICTIMS’ RESOURCE CENTER, INC.,
Upper Marlboro, Maryland, for Petitioner. Robert W. Biddle,
NATHANS & BIDDLE, L.L.P., Baltimore, Maryland, for Gregory B.
Bermudez; James Wyda, Federal Public Defender for the District of
Maryland, Denise C. Barrett, Assistant Federal Public Defender,
Andrew Carter, Assistant Federal Public Defender, Martin Bahl,
Staff Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for John G. Bermudez, Jr.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wayne Brock, the victim of a criminal assault, petitions for
a writ of mandamus pursuant to the Crime Victims’ Rights Act
(“CVRA”), 18 U.S.C.A. § 3771 (West Supp. 2007). Brock contends
that he is entitled to relief because the district court failed to
afford him the full scope of his rights under the CVRA to “be
reasonably heard at any public proceeding in the district court
involving release, plea, sentencing, or any parole proceeding” and
to “be treated with fairness and with respect for [his] dignity and
privacy.” 18 U.S.C.A. § 3771(a)(4) & (8) (West Supp. 2007). After
reviewing the record and the submissions of the interested parties,
we find no basis for granting the relief Brock requests and,
therefore, deny the petition.
I.
This mandamus petition arises out of the sentencing
proceedings following Gregory Bermudez’s and John Bermudez’s
convictions for a criminal assault against Brock.
On January 15, 2008, two days before the Bermudezes’
sentencing hearing, Brock filed a motion to assert victim’s rights
under the CVRA, requesting disclosure of four parts of the
Bermudezes’ presentence reports (“PSRs”): (1) the
background/statement of facts section; (2) the restitution section,
including any discussion of Brock’s losses and the defendants’
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ability to pay; (3) the section calculating the sentencing range
under the United States Sentencing Guidelines; and (4) the upward
departure section.
Brock, who has been represented by counsel since June 2007,
was in possession of several documents relating to the Bermudezes’
sentencing prior to the filing of this motion. Specifically, Brock
had access to Gregory Bermudez’s sentencing memorandum, as well as
the original of the Government’s two sentencing memoranda. These
memoranda summarized the substance of the PSRs and also included
comprehensive discussions of the Guidelines calculations contained
in the PSRs in addition to other facts relevant to the district
court’s sentencing decision. Brock had not, however, been provided
with access to the PSRs themselves because, under the District of
Maryland’s Local Rule 213(1)(a), PSRs are “confidential internal
Court document[s] to which the public has no right of access.”
Likewise, under 18 U.S.C. § 3552(d) (West 2000) and Federal Rule of
Criminal Procedure 32(e)(2), PSRs are to be provided only to the
defendant, the defendant’s counsel, and the attorney for the
Government.
At the sentencing hearing, the district court denied Brock’s
motion, concluding that Brock was present and had all the
information he needed to make a victim impact statement, regardless
of whether he saw the PSRs. The district court declined to hear
testimony or arguments from Brock related to Guidelines
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calculations, but it did recognize that Brock had a right to be
heard with respect to the sentences imposed. Accordingly, the
district court (over the defense’s objection that the written
victim impact statement and “Restitution Affidavit” Brock had
already submitted should suffice), afforded Brock the opportunity
to “make whatever further impact statement he want[ed] to make.”
(Addendum to Brock’s Petition at 76.) In response, Brock expressed
dissatisfaction with the district court’s characterization of the
severity of the assault, described the crime’s impact on him, and
asked the court to look at all the evidence and make a conscious
decision on sentencing. At the close of this hearing, the district
court sentenced Gregory Bermudez to eight months’ imprisonment and
John Bermudez to ten months’ imprisonment.
Following the sentencing hearing, on January 28, 2008, Brock
filed this mandamus petition pursuant to the CVRA. See 18 U.S.C.
§ 3771(d)(3) (providing that if the district court denies a victim
relief sought under the CVRA, the victim “may petition the court of
appeals for a writ of mandamus” and “[t]he court of appeals shall
take up and decide such application forthwith within 72 hours after
the petition has been filed”).
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II.
A.
Before turning to the substance of Brock’s petition, we
briefly address the appropriate standard of review. Normally, we
apply an extremely stringent standard of review to mandamus
petitions that requires petitioners to demonstrate an “abuse of
discretion [that] amount[s] to a judicial usurpation of power.” In
re Catawba Indian Tribe of S.C., 973 F.2d 1133, 1136 (4th Cir.
1992) (internal quotation marks omitted). Brock contends, however,
that mandamus petitions filed under the CVRA should not be subject
to this stringent standard of review. Instead, Brock contends, and
at least two other circuits have concluded, because Congress chose
the mandamus petition as a vehicle for relief that would function
in a manner similar to a traditional appeal, an ordinary abuse of
discretion standard should apply to CVRA mandamus petitions. See
Kenna v. U.S. Dist. Court (“Kenna I”), 435 F.3d 1011, 1017 (9th
Cir. 2006); In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 562-63
(2d Cir. 2005). We need not decide this issue today, however,
because even applying the more relaxed abuse of discretion
standard, we conclude that Brock is not entitled to relief.
B.
In his mandamus petition, Brock contends that the district
court committed legal error by denying him access to portions of
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the defendants’ PSRs, refusing to hear the information he wanted to
present concerning the Guidelines calculations, and incorrectly
calculating the defendants’ Sentencing Guidelines ranges. These
legal errors, he claims, deprived him of his rights under the CVRA
to be “reasonably heard” at the sentencing hearing and to be
“treated with fairness.” 18 U.S.C. § 3771(a)(4)&(8).
Based on the record before us, we cannot conclude that the
district court abused its discretion or abridged Brock’s rights
under the CVRA by denying him access to portions of the PSR.
Although Brock claims that, without the PSR, he had insufficient
knowledge of the issues relevant to sentencing to meaningfully
exercise his right to be reasonably heard, the record reveals that
he was provided ample information concerning the applicable
Sentencing Guidelines and other issues related to the defendants’
sentencing.* And, of course, he did not need access to the PSR to
describe the crime’s impact on him. Accord In re Kenna (“Kenna
II”), 453 F.3d 1136 (9th Cir. 2006) (holding that neither the
language of the CVRA nor the legislative history supported a
victim’s argument that the CVRA confers a general right on victims
to access the PSR).
*
Before the district court, Brock had also argued that he
needed the PSR to obtain information related to his entitlement to
restitution. At the sentencing hearing, however, the district
court postponed a determination of the amount of restitution due
Brock because it had insufficient information to calculate the
amount of loss, and Brock does not pursue this argument in his
petition.
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We likewise cannot conclude that the district court’s refusal
to consider arguments from Brock concerning Guidelines calculations
prevented him from being reasonably heard or treated fairly. The
district court considered Brock’s written victim impact statement
and also afforded him the opportunity to offer any further
statements he wished to make regarding the assault. Moreover, the
district court emphasized that the Guidelines represented only one
of many factors that it considered and explicitly stated that it
would have imposed the same sentences regardless of what the
Guidelines ranges had been. (See Addendum to Brock’s Petition at
155 “[I]rregardless of the Guideline[s] calculations that I made
today, the sentence that I would have imposed had the guidelines
been something different would have been the same. I would have
varied from the Guidelines if that had been necessary to reach the
sentence that was reached in both of these cases.”).
Finally, the CVRA does not provide victims with a right to
appeal a defendant’s sentence by challenging the district court’s
calculation of the Guidelines range. Accordingly, regardless of
whether the district court’s Guidelines calculations were correct,
based on the record before us, we conclude that Brock was
“reasonably heard” and fairly treated. See 18 U.S.C.
3771(a)(4)&(8).
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III.
For the foregoing reasons, Brock’s petition for a writ of
mandamus is
DENIED.
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