Opinions of the United
2007 Decisions 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Precedential or Non-Precedential: Non-Precedential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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"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NOT PRECEDENTIAL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)
OPINION
*Judge Sylvia H. Rambo, United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
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,1 the District Court adopted the findings of the presentence report. Given
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. §
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The District Court found that McCormick suffered from numerous physical,
emotional, and mental ailments in addition to his severe alcohol addiction.
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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
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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.
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