United States v. Wagner-Dano

10-4593-cr
United States v. Wagner-Dano

United States Court of Appeals
FOR THE SECOND CIRCUIT

August Term 2011

(Submitted: March 13, 2012 Decided: May 14, 2012)

No. 10-4593-cr
_____________________________________

UNITED STATES OF AMERICA,
Appellee,

-v.-

MELISSA WAGNER-DANO,
Defendant-Appellant.
_____________________________________

Before: WINTER, LIVINGSTON, Circuit Judges, and RAKOFF, District Judge.*

Defendant-Appellant Melissa Wagner-Dano (“Wagner-Dano”) appeals from
a judgment of the United States District Court for the Northern District of New
York (Norman A. Mordue, Chief Judge), entered October 26, 2010, convicting
Wagner-Dano, upon her guilty plea, of wire fraud in violation of 18 U.S.C.
§ 1343, and sentencing her principally to 78 months’ imprisonment. Wagner-
Dano argues that her sentence is procedurally defective and substantively
unreasonable. She argues that the district court procedurally erred by: (1)
inadequately considering the 18 U.S.C. § 3553(a) sentencing factors; and (2)
neglecting to address several of her objections to the Presentence Investigation
Report, allegedly in violation of Federal Rule of Criminal Procedure 32(i)(3)(B).
We hold that because Wagner-Dano did not raise either procedural objection
before the district court, our review of both procedural arguments is restricted
to plain error. We further conclude that neither alleged procedural defect
amounts to plain error. Because we also conclude that the sentence chosen by
the district court is substantively reasonable, we affirm the judgment of the
district court.

*
The Honorable Jed S. Rakoff of the United States District Court for the
Southern District of New York, sitting by designation.
 Edward R. Broton & Elizabeth S. Riker,
Assistant United States Attorneys, for Richard S.
Hartunian, United States Attorney for the
Northern District of New York, Syracuse, New
York, for Appellee.

Devin McLaughlin, Langrock Sperry & Wool,
LLP, Middlebury, Vermont, for Defendant-
Appellant.

LIVINGSTON, Circuit Judge:

Defendant-Appellant Melissa Wagner-Dano (“Wagner-Dano”) appeals from

a judgment of the United States District Court for the Northern District of New

York (Norman A. Mordue, Chief Judge), entered October 26, 2010, convicting

Wagner-Dano, upon her guilty plea, of wire fraud in violation of 18 U.S.C.

§ 1343, and sentencing her principally to 78 months’ imprisonment. Wagner-

Dano argues that her sentence is both procedurally defective and substantively

unreasonable. She argues that the district court procedurally erred by: (1)

inadequately considering the 18 U.S.C. § 3553(a) sentencing factors; and (2)

neglecting to address several of her objections to the Presentence Investigation

Report (“PSR”), allegedly in violation of Federal Rule of Criminal Procedure

32(i)(3)(B). We hold that because Wagner-Dano did not raise either procedural

objection before the district court, our review of both procedural arguments is

restricted to plain error. We further conclude that neither alleged procedural

defect amounts to plain error. Because we also conclude that the sentence

2
imposed by the district court is substantively reasonable, we affirm the

judgment of the district court.

BACKGROUND

I. The Offense Conduct

Melissa Wagner-Dano, a thirty-three-year-old married mother of two, was

employed as a bookkeeper by: (1) the Town of Lewis, New York, a small

community of about 1100; (2) the Oneida Lewis Milk Producers Cooperative

(“OLMPC”), a dairy farm cooperative of eighteen dairy farms in Oneida and

Lewis counties; and (3) the Boonville Farms Cooperative, Inc. (“BFC”), made up

of thirty-nine member dairy farms in Oneida, Lewis, and Herkimer counties.

The latter two regional dairy cooperatives sell milk from their dairy farm

members to milk processors, collect the receipts, and pay their respective

cooperative members. As the bookkeeper for the Town and the dairy farm

cooperatives, Wagner-Dano controlled the bank accounts for all three entities.

From January 2007 through December 2009, Wagner-Dano stole

$1,169,717.74 from her employers through unauthorized withdrawals from their

bank accounts by means of wire transfers, Internet accounts, fictitious payroll

accounts, and checks payable to herself. She transferred funds between the

3
three entities’ accounts to cover her theft.1 Wagner-Dano used the stolen money

to purchase, among other things, property improvements, a customized truck for

“truck pulling” competitions, and fifteen gypsy horses.

The scheme began to unravel in September 2009, when a BFC board

member was notified by the company’s bank that BFC’s $250,000 line of credit

had reached its limit. The board member contacted Wagner-Dano, who falsely

told him that the problem stemmed from the malfunction of her computer. She

then paid back BFC’s line of credit, also paying associated late fees and penalties

on the account. She thereafter transferred $50,000 from her personal checking

account to the Town of Lewis’s bank account. In a letter to the BFC board of

directors she sent in October, Wagner-Dano repeated her explanation that the

credit line had reached its limit as a result of unauthorized transfers caused by

a computer crash. When OLMPC board members confronted her one month

later, however, she admitted that she had transferred money between accounts

for OLMPC and the Town of Lewis. Wagner-Dano waived indictment on April

19, 2010, and pleaded guilty to one count of wire fraud in a scheme against

OLMPC, BFC, the members of those cooperatives, and the Town of Lewis.

1
Wagner-Dano also concealed her activities by under-reporting to the dairy
farms the value of their milk. The amount owed for milk provided by these farms is
dependent on the milk’s composition—its percentage butter fat, protein, and solids.
Wagner-Dano under-reported the quality of the milk to the dairy farmers, and then
billed the processors for its true value, pocketing the difference. Wagner-Dano’s false
reporting of milk quality to the farmers resulted not only in loss to the cooperatives,
but in unnecessary and costly modifications to farming practices in efforts to improve
the milk.

4
 II. The Presentence Investigation Report

The United States Probation Office prepared a PSR that summarized the

facts of Wagner-Dano’s offense. It contained a calculation of Wagner-Dano’s

sentencing range pursuant to the United States Sentencing Guidelines (“the

Guidelines”) of 63 to 78 months’ imprisonment. Wagner-Dano submitted a

lengthy sentencing memorandum objecting to several statements in the PSR.

The PSR was thereafter revised to address some of these objections.2 Wagner-

Dano’s remaining objections were appended to the PSR.

The revised PSR and its addenda recount eight objections made by

Wagner-Dano.

First, although the PSR states that $1,169,717.74 was lost, Wagner-Dano

objected that the correct loss amount was $1,119,595.35.

Second, the PSR states that Wagner-Dano owed $1,016,867.46 in

restitution, but she argued that the proper restitution amount was $966,745.07.

Third, the PSR reports that “the Town of Lewis Supervisor . . . . states that

the entire budget for the Town of Lewis is approximately $500,000 and the

defendant stole half.” Wagner-Dano objected that “it would be more accurate to

consider the loss over the three-year period she took the funds, in which case the

stolen funds represent about 15% of the Town’s budget.”

2
These modifications to the PSR did not affect the Probation Office’s calculation
of the Guidelines range.

5
 Fourth, the PSR states that “[o]n October 29, 2009, the defendant wrote

a letter and sent it via fax to the Board of Directors of BFC in which she falsely

stated that unauthorized transfers from the BFC checking account had occurred

and were the result of her computer system having crashed.” Wagner-Dano

objected that she wrote this letter not in an attempt to cover up her thefts, but

rather because she was advised to “concoct[] an excuse for the missing money”

by BFC’s treasurer, who “was running for public office at the time and

apparently wanted to avoid having to take any responsibility for her actions.”

Fifth, the PSR states that:

In October and November of 2009, Wagner-Dano repaid some
of the monies she stole from the victims before she was under
investigation for or charged with the offense. Specifically, the
defendant made payments totaling $81,900 to BFC; $17,800 to
OLMPC; and $60,000 to the Town of Lewis. . . . [L]oss shall be
reduced by the money returned by the defendant to the victim
before the offense was detected. The time of detection of the offense
is the time the defendant knew or reasonably should have known
that the offense was detected or about to be detected by a victim or
government agency. Wagner-Dano knew or reasonably should have
known her offense was detected or about to be detected by the
victims because she had been questioned by BFC about missing
monies in September 2009. The defendant not only started repaying
some of the money, she also lied to the victims and reported the
money shortages were due to computer problems she was having
and promised she would resolve the issue.

The PSR also specifically states that in October 2009, Wagner-Dano wrote two

checks, each for $25,000, to the Town of Lewis, and that “[a]ccording to the Town

Supervisor, the defendant deposited this money into the Town bank account
6
because she knew the Town’s expenses would soon be paid from this account and

she did not want her theft to be discovered.” Wagner-Dano objected that her

October 2009 and November 2009 repayments were not attempts to cover up her

theft, but rather were intended “to make restitution,” because “[s]he knew she

had been ‘found out’ when she was questioned about the missing money at the

end of September 2009.”

Sixth, the PSR states in its “Mitigating and Aggravating Factors” section

that “in the month following the commencement of the official criminal

investigation, Wagner-Dano transferred ownership of the house she and her

husband owned to her parents. Although she had made at least $100,000 in

improvements to the property during the period she committed the crime, she

received no compensation as part of the transfer.” Wagner-Dano and her

husband had purchased the home in January 2009 from her father, who gave

them a mortgage loan in connection with the purchase. Wagner-Dano objected

that when she transferred the house to her parents after her embezzlement was

discovered, she “was led to believe the house would be sold and any proceeds

used to pay restitution.” She claimed that “[h]er parents’ attorney sent a letter

notifying [her and her husband that] the mortgage was in default and

threatening . . . foreclosure,” and that “the transfer was not an attempt to place

the asset out of the reach of the defendant’s creditors.”

7
 Seventh, the “Mitigating and Aggravating Factors” section of the PSR also

states:

The following information may be viewed as aggravating.
When the victims became suspicious of the defendant’s accounting
activities and started to question her about missing monies,
Wagner-Dano started selling the assets she had derived from the
stolen moneys to try and repay the victims. In an apparent attempt
to mitigate the loss and thereby her culpability, she sold items (e.g.
the gypsy horses and custom truck) for much less than what may
have been their actual value.

Wagner-Dano objected that the “sale of her assets immediately following the

discovery of the offense . . . was only [an] attempt[] to make restitution and not

. . . to cover up the thefts.” According to Wagner-Dano, she “sold the horses and

pulling truck for the best prices she was offered,” but the gypsy horse breed “had

depreciated in value due to increased availability.”

Eighth and finally, the PSR indicates that Wagner-Dano objected to its

valuation of the custom truck she purchased:

Over the course of her theft, the defendant and her husband
used the stolen money to accumulate assets, make improvements in
their property, and participate in truck pulling, which can be an
expensive hobby. Specifically, Wagner-Dano purchased 15 gypsy
horses with an estimated value of at least $300,000; made at least
$100,000 worth of improvements in her property; and customized a
truck for truck pulling that was worth approximately $55,000 after
all the improvements were made. (The value of this truck is
disputed by the parties. This truck, known as “Sweet Addiction[,]”
was posted for sale on the Internet on September 29, 2009 with an
asking price of $55,000. The government has documentation from
the mechanic who made the modifications to the truck for the
defendant and her husband that he did work on the truck costing
8
 $45,299.69 for parts and labor. The defendant reports she paid
$30,000 to $35,000 for the truck in 2000 and obtained a loan for
$23,000 in 2007 to make improvements. The truck was sold in
November 2009 for $10,000.)

Wagner-Dano also objected that she did not use stolen money to purchase or

customize the pulling truck.

III. Sentencing

At the outset of sentencing, the district court asked, “[D]o counsel have

any objections to the facts as stated in the presentence report?” Wagner-Dano’s

counsel replied, “Judge, my only objections were summarized in the addendum.”

Counsel specifically stated that Wagner-Dano had no objection to the Probation

Office’s calculation of Wagner-Dano’s offense level or criminal history category.

The Supervisor of the Town of Lewis spoke at sentencing, indicating that

the Town had lost the money it had set aside for a town hall and unemployment

insurance fund. Two dairy farmers also made statements.3 Wagner-Dano’s

counsel addressed the court at length, and Wagner-Dano spoke, expressing

remorse.

Later during the sentencing hearing, the district court stated:

I have reviewed and I’ve considered all pertinent information
including but not limited to the presentence investigation report,
the addendum, the submissions by counsel. I’ve also considered,

3
In addition, dozens of victim impact statements and letters to the court were
attached to the PSR, most of them from the farm families who suffered losses.

9
 Mr. Hildebrandt [Wagner-Dano’s counsel], the factors that are
outlined in 18 U.S.C. [§] 3553(a) as well as the Sentencing
Guidelines. I’m adopting the factual information contained in the
presentence report.

The district court then sentenced Wagner-Dano to 78 months’ imprisonment.

Wagner-Dano’s counsel made no objections.

DISCUSSION

On appeal, Wagner-Dano argues that her sentence should be vacated on

both procedural and substantive grounds. Procedurally, she argues that the

district court gave inadequate consideration to the sentencing factors set forth

in 18 U.S.C. § 3553(a). She also argues that the district court violated Rule

32(i)(3)(B) of the Federal Rules of Criminal Procedure by neglecting to address

several of her objections to the PSR.4 We hold that our review of both of these

procedural arguments is restricted to plain error because Wagner-Dano failed

to raise them before the district court. Under this standard of review, neither

of the alleged procedural defects constitutes reversible error. Wagner-Dano next

argues that her 78-month sentence is substantively unreasonable. We disagree.

Accordingly, we affirm the judgment of the district court.

4
Rule 32(i)(3)(B) provides that, “[a]t sentencing, the 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.”
Fed. R. Crim. P. 32(i)(3)(B).

10
 I. Procedural Adequacy

A. Consideration of § 3553(a) Sentencing Factors

Section 3553(a) of Title 18 requires a district court to consider several

factors in determining a sentence.5 Failure to consider the § 3553(a) factors

constitutes procedural error. United States v. Cavera, 550 F.3d 180, 190 (2d Cir.

2008) (en banc). In this Circuit, “we presume ‘that a sentencing judge has

faithfully discharged her duty to consider the statutory factors.’” United States

v. Verkhoglyad, 516 F.3d 122, 129 (2d Cir. 2008) (quoting United States v.

5
Section 3553(a) provides that:
The court shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth of paragraph (2) of this
subsection. The court, in determining the particular sentence to be
imposed, shall consider—
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established [and
recommended by the Sentencing Guidelines] . . . ;
(5) any pertinent policy statement . . . issued by the Sentencing
Commission . . . [;]
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of similar
conduct; and
(7) the need to provide restitution to any victims of the offense.

11
Fernandez, 443 F.3d 19, 30 (2d Cir. 2006)). “[W]e do not require ‘robotic

incantations’ that the district court has considered each of the § 3553(a) factors.”

Cavera, 550 F.3d at 193 (quoting United States v. Crosby, 397 F.3d 103, 113 (2d

Cir. 2005)). Moreover, “we never have required a District Court to make specific

responses to points argued by counsel in connection with sentencing.” United

States v. Bonilla, 618 F.3d 102, 111 (2d Cir. 2010).

Wagner-Dano argues first that the district court failed to consider “the

nature and circumstances of the offense and the history and characteristics of

the defendant” as required by 18 U.S.C. § 3553(a)(1). Specifically, she argues

that the district court failed to address her repayment of over $350,000; her lack

of criminal history; and her “consistent history of hard work.” Appellant’s Br.

at 19. Wagner-Dano further argues that the district court failed to consider her

low risk of recidivism based on her sex, age, education level, family status, and

offense. She contends that these facts are relevant to the need for her

incapacitation and specific deterrence, and thus should have been addressed by

the district court as part of its consideration of the 18 U.S.C. § 3553(a)(2)(B) and

(C) factors.

Wagner-Dano presented substantially these arguments to the district

court in a sentencing memorandum and explained many of them again, orally,

at sentencing. Nothing in the record of this case indicates that the district court

12
did not consider these arguments or the § 3553(a) factors more generally.

Indeed, after hearing these arguments, Chief Judge Mordue stated, “I have

reviewed and I’ve considered all pertinent information including but not limited

to the presentence investigation report, the addendum, the submissions by

counsel. I’ve also considered . . . the factors that are outlined in 18 U.S.C.

[§] 3553(a) as well as the Sentencing Guidelines.” We have concluded in the

context of a similar procedural challenge to a sentence that a nearly identical

district court statement “could not have been more clear.” Bonilla, 618 F.3d at

111.

Moreover, where a defendant does not object to a district court’s alleged

failure to properly consider all of the § 3553(a) factors, our review on appeal is

restricted to plain error. See id.; United States v. Villafuerte, 502 F.3d 204, 208

(2d Cir. 2007). Wagner-Dano did not object that the district court procedurally

erred by failing to give adequate consideration to the § 3553(a) factors; she raises

that argument for the first time on appeal. Accordingly, the plain-error standard

applies. We find no error, much less plain error, here.

B. Addressing Disputed Portions of the Presentence Report

1. Wagner-Dano’s Rule 32(i)(3)(B) Claim

Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure states that a

district court, at sentencing, “must—for any disputed portion of the presentence

13
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.” Wagner-Dano

argues that the district court failed to comply with Rule 32(i)(3)(B) by neglecting

to address several of the objections she made regarding the PSR.

Some of Wagner-Dano’s objections—such as the loss and restitution

amounts, the value of the pulling truck, and whether the truck was purchased

with stolen money—directly disputed the PSR’s statement of the facts. These

issues were resolved by the district court’s decision to adopt as findings the

factual information in the PSR. Others of Wagner-Dano’s objections, however,

did not directly dispute the facts as set forth in the PSR, but rather attempted

to clarify Wagner-Dano’s motives or provide context for the PSR’s facts. These

include Wagner-Dano’s objections regarding: (1) her motive for writing the

October 29, 2009, letter which falsely blamed BFC’s account deficits on a

computer problem; (2) her motive for making repayments in October and

November 2009; (3) her motive for selling her assets; and (4) her motive for

transferring her house to her parents. Because the PSR did not directly conflict

with Wagner-Dano’s explanations on these issues, the district court’s adoption

of the PSR may not have disposed of these objections.

14
 Wagner-Dano presented her factual objections in a memorandum to the

district court prior to sentencing. She mentioned them at sentencing only

insofar as the district court asked, “[D]o counsel have any objections to the facts

as stated in the presentence report?”, to which Wagner-Dano’s counsel replied,

“Judge, my only objections were summarized in the addendum.” The district

court then adopted the PSR’s statement of facts—presumably believing that in

so ruling, it had disposed of all of Wagner-Dano’s objections. Cf. United States

v. Prince, 110 F.3d 921, 924 (2d Cir. 1997) (“A district court satisfies its

obligation to make ‘findings sufficient to permit appellate review . . . if the court

indicates, either at the sentencing hearing or in the written judgment, that it is

adopting the recommendations in the [PSR].’”) (omission in original) (quoting

United States v. Thompson, 76 F.3d 442, 456 (2d Cir. 1996)). When the district

court adopted the PSR and pronounced its sentence, Wagner-Dano did not object

on the procedural ground that the court had failed to address her objections to

the PSR and rule on the matters she disputed.

The parties disagree whether, under these circumstances, our review of

the district court’s compliance with Rule 32(i)(3)(B) is limited to plain error. For

the reasons set forth herein, we hold that it is. We review only for plain error

where, as here, an appellant asserts that the district court neglected to address

an objection to the PSR in violation of Rule 32(i)(3)(B), but that appellant failed

15
to alert the district court of this procedural issue after the district court made its

findings or pronounced its sentence. Finding no plain error here, we reject

Wagner-Dano’s claim that her sentence was procedurally flawed by virtue of the

district court’s alleged failure to rule on her objections to the PSR.

2. The Applicable Standard of Review

This Circuit’s precedents are unclear regarding what standard of review

we apply where a defendant initially makes an objection to the PSR at

sentencing, but then fails to object when the district court allegedly violates Rule

32(i)(3)(B) by neglecting to resolve or otherwise address the objection.6 None of

our Rule 32(i)(3) cases directly addresses the applicable standard of review.7

Nonetheless, our practice with regard to the current Rule 32(i)(3) comports with

reviewing unpreserved Rule 32(i)(3) challenges only for plain error, and we

believe this is the better reading both of our precedents and of the Federal Rules

of Criminal Procedure.

6
We note that the procedural argument that a district court failed to comply
with Rule 32(i)(3) by neglecting to address an objection to the PSR is distinct from the
substantive argument that a district court’s resolution of such an objection was
erroneous. Wagner-Dano makes only the former, procedural argument. We have
already held that the latter, substantive argument must be raised at sentencing to be
preserved for appeal. See United States v. Rizzo, 349 F.3d 94, 99 (2d Cir. 2003).
7
In an unpublished summary order, we have suggested that we review
unpreserved Rule 32(i)(3) challenges only for plain error. See United States v.
Dominguez, 393 F. App’x 773, 778–79 (2d Cir. 2010) (unpublished summary order)
(distinguishing between an unpreserved factual challenge to the PSR that was waived
and an unpreserved procedural challenge “about the district court’s failure to make
explicit findings as to drug quantity,” and stating that our review of the latter is only
for plain error). However, we are not bound by that decision. See 2d Cir. Local R.
32.1.1(a).

16
 “Federal Rule of Criminal Procedure 52(b), which governs on appeal from

criminal proceedings, provides a court of appeals a limited power to correct

errors that were forfeited because not timely raised in district court.” United

States v. Olano, 507 U.S. 725, 731 (1993) (emphasis added). Accordingly, our

general rule is that “issues not raised in the trial court because of oversight,

including sentencing issues, are normally deemed forfeited on appeal unless they

meet our standard for plain error.” Villafuerte, 502 F.3d at 207. See generally

Fed. R. Crim. P. 52; Charles Alan Wright et al., Federal Practice & Procedure

§ 856 (3d ed. 2011) (“There would seem to be no error to which plain error review

would not apply . . . . No exception for sentencing errors appears in either the

Rule [52(b)] or the [Supreme] Court’s cases interpreting the rule.”). This Circuit

has recognized exceptions in the sentencing context where an appellant lacked

prior notice of the aspect of the sentence challenged on appeal, see Villafuerte,

502 F.3d at 208, in part because “noticing unobjected to errors that occur at trial

precipitates an entire new trial that could have been avoided by a timely

objection, whereas correcting a sentencing error results in, at most, only a

remand for resentencing.” United States v. Sofsky, 287 F.3d 122, 125 (2d Cir.

2002). But “we have declined to overlook a lack of objection where the

sentencing issue was not particularly novel or complex.” Villafuerte, 502 F.3d

at 208 (internal quotation marks omitted).

17
 For example, as discussed in the prior section of this opinion, our decision

in United States v. Villafuerte, 502 F.3d 204 (2d Cir. 2007), held that plain-error

analysis applies where an appellant argues for the first time on appeal that the

district court failed to consider the § 3553(a) sentencing factors. Although the

defendant in Villafuerte made a substantive argument before the district court

for a below-Guidelines sentence based on his personal circumstances, see id. at

206, we held that such a substantive objection did not preserve his procedural

challenge that the district court had neglected to consider the sentencing factors,

see id. at 207. We explained that “[b]ecause we have unambiguously required

consideration of the § 3553(a) factors . . . in every criminal sentencing proceeding

[since 2005],” this issue is not particularly novel or complex. Id. at 208; see id.

at 211. Accordingly, “raising an objection to the failure to do so in order to alert

the district court to the problem is neither difficult nor onerous. This

requirement alerts the district court to a potential problem at the trial level and

facilitates its remediation at little cost to the parties, avoiding the unnecessary

expenditure of judicial time and energy in appeal and remand.” Id. at 208.

Villafuerte’s reasoning is equally applicable to Rule 32(i)(3). The

requirements of Rule 32(i)(3)(B), like the requirements of § 3553(a), are neither

novel nor complex. If the defendant or the Government believes that a

particular factual issue is material and the district court neglects to address the

18
issue at sentencing, it is not difficult—indeed, it should be intuitive—to bring

this procedural error to the district court’s attention. Employing a plain error

standard in the review of Rule 32(i)(3) arguments raised for the first time on

appeal, moreover, is consistent with the practice in those sister circuits that

appear to have considered the issue. See United States v. Williamson, 53 F.3d

1500, 1527 (10th Cir. 1995) (reviewing only for plain error because although the

defendant “raised an objection to [a] statement in the presentence report, she

candidly concedes she did not make a separate objection to the district court’s

failure to make an appropriate finding under Rule 32[]”); see also United States

v. Brame, 448 F. App’x 364, 366 (4th Cir. 2011) (unpublished decision); United

States v. Vonner, 516 F.3d 382, 388 (6th Cir. 2008) (en banc). But cf. United

States v. Williams, 612 F.3d 500, 517 (6th Cir. 2010) (distinguishing Vonner as

not involving “a genuine dispute between the parties,” but “emphasiz[ing] that

[Williams] is not an ordinary case”).

We note that our decision today departs from our practice with regard to

Rule 32(i)(3)’s earliest predecessor, Rule 32(c)(3)(D) (1988).8 But a brief foray

8
Rule 32(c)(3)(D), which was adopted in 1983, provided that:

If the comments of the defendant and the defendant’s counsel or
testimony or other information introduced by them allege any factual
inaccuracy in the presentence investigation report or the summary of the
report or part thereof, the court shall, as to each matter controverted,
make (i) a finding as to the allegation, or (ii) a determination that no such
finding is necessary because the matter controverted will not be taken

19
into the history of our Rule 32 precedents explains why the plain-error standard

applies to the current Rule 32(i)(3) even if our review under its predecessor was

more searching.

Our cases decided under Rule 32(c)(3)(D), from its adoption in 1983 until

the rule was amended in 1994, held that even “virtually de minimis” technical

violations of Rule 32(c)(3)(D) required remand for clarification—though we

rarely required resentencing. United States v. Bradley, 812 F.2d 774, 782 (2d

Cir. 1987); see also United States v. Feigenbaum, 962 F.2d 230, 232 (2d Cir.

1992); United States v. Williamsburg Check Cashing Corp., 905 F.2d 25, 27 (2d

Cir. 1990); Dunston v. United States, 878 F.2d 648, 650 (2d Cir. 1989) (per

curiam); United States v. Arefi, 847 F.2d 1003, 1007–08 (2d Cir. 1988); United

States v. Ursillo, 786 F.2d 66, 71 (2d Cir. 1986). And although none of our

opinions in those cases mentions whether the appellant made a separate

procedural objection when the district court allegedly failed to address a factual

objection to the PSR, this silence suggests that in most of those cases no such

separate objection was made. Our strict review under Rule 32(c)(3)(D) therefore

may have been incompatible with the plain-error standard.

into account in sentencing. A written record of such findings and
determinations shall be appended to and accompany any copy of the
presentence investigation report thereafter made available to the Bureau
of Prisons.

Rule 32(c)(3)(D) (1988).

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 The exactness we required under that rule stemmed from its explicit

purpose of protecting the defendant even after sentencing “because the PS[R] is

utilized by the Parole Commission in its determination of parole eligibility for

a defendant.” Dunston, 878 F.2d at 650. The Advisory Committee that drafted

Rule 32(c)(3)(D) explained that “the Bureau of Prisons and the Parole

Commission make substantial use of the presentence investigation report,” and

thus the purpose of that rule was “to ensure that [a clear and accurate] record

comes to the attention of the Bureau or Commission when these agencies utilize

the presentence investigation report.” Fed. R. Crim. P. 32 advisory committee’s

note, 1983 Amend. (1988). Our strict interpretation of that rule reflected that

stated purpose; indeed, our first case to apply the rule “strictly” involved a

motion filed by a prisoner more than a year after sentencing, purportedly

pursuant to Rule 32(c)(3)(D), “to strike several allegedly erroneous items from

the presentence report because they were ‘extremely prejudicial to petitioner in

his application for parole consideration.’” Ursillo, 786 F.2d at 68.

Since then, the relevant portion of Rule 32 has been materially amended

twice, each time to reduce the burdens on the district court and to confine the

rule to the more limited purpose of sentencing. The 1994 amendment indicated

that a court “need not resolve controverted matters which will ‘not be taken into

account in, or will not affect, sentencing,’” with the intended purpose of

21
“identifying and narrowing the issues to be decided at the sentencing hearing.”9

Fed. R. Crim. P. 32 advisory committee’s note, 1994 Amend. (1994) (emphasis

added) (quoting Fed. R. Crim. P. 32(c)(1) (1994)). In 2002, the rule was both

restyled and amended to its current form. Its substantive changes stemmed

from a concern that the rule might be read broadly to require a court to address

every “unresolved objection[]”—even if uncontroverted and irrelevant to the

sentence—and thus “place an unreasonable burden on the court without

providing any real benefit to the sentencing process.” Fed. R. Crim. P. 32

advisory committee’s note, 2002 Amend. (2006). Accordingly, “[r]evised Rule

32(i)(3) narrows the requirement for court findings to those instances when the

objection addresses a ‘controverted matter.’” Id.

9
The relevant portion of the 1994 amendment provided that:

At the sentencing hearing, the court must afford counsel for the
defendant and for the Government an opportunity to comment on the
probation officer’s determinations and on other matters relating to the
appropriate sentence, and must rule on any unresolved objections to the
presentence report. The court may, in its discretion, permit the parties
to introduce testimony or other evidence on the objections. For each
matter controverted, the court must make either a finding on the
allegation or a determination that no finding is necessary because the
controverted matter will not be taken into account in, or will not affect,
sentencing. A written record of these findings and determinations must
be appended to any copy of the presentence report made available to the
Bureau of Prisons.

Fed. R. Crim. P. 32(c)(1) (1994).

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 Our cases decided under the modern Rule 32(i)(3), with its more limited

focus on controverted issues relevant to sentencing, have departed from our prior

practice. For example, in United States v. Gilmore, 599 F.3d 160 (2d Cir. 2010),

the district court heard the defendant’s objections regarding the applicability of

a Sentencing Guidelines enhancement, said “Thank you very much,” and

adjourned the proceeding without making a ruling. Id. at 165. On appeal, we

agreed with the appellant that “the court’s failure to rule on his objection to the

court’s interpretation of the 2004 Guidelines was at least a technical error” in

violation of Rule 32(i)(3)(B). Gilmore, 599 F.3d at 168. We nonetheless affirmed

the district court’s judgment because we concluded that “this error was

harmless, as it is clear that the inapplicability of the enhancements would not

have affected the sentence imposed.” Id. Not once since the 2002 amendment

to Rule 32 have we remanded a case to a district court for it to remedy a

technical violation of Rule 32(i)(3).

For the reasons stated here, we conclude that our prior practice under

Rule 32(i)(3), although we have not explicitly addressed the standard of review,

is wholly compatible with a plain-error standard of review for unpreserved

challenges.10 Accordingly, seeing no reason or justification for carving out an

10
We note that consistent with the changes from Rule 32(c)(3)(D) to Rule
32(i)(3)—and the shift in our jurisprudence from remanding even de minimis violations
under the old rule to subjecting alleged violations of the modern rule to harmless error

23
exception to Rule 52(b) in this context, we hold that Wagner-Dano waived her

Rule 32(i)(3) argument by failing to alert the district court of her procedural

objection that the court had not adequately addressed her disagreements with

the PSR. We therefore review for plain error.

3. Applying the Plain Error Standard

As the Supreme Court has recently reiterated, when reviewing for plain

error,

an appellate court may, in its discretion, correct an error not raised
at trial only where the appellant demonstrates that (1) there is an
error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant’s substantial
rights, which in the ordinary case means it affected the outcome of
the district court proceedings; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.

United States v. Marcus, 130 S. Ct. 2159, 2164 (2010) (brackets and internal

quotation marks omitted). “[T]he burden of establishing entitlement to relief for

plain error is on the defendant claiming it . . . .” United States v. Dominguez

Benitez, 542 U.S. 74, 82 (2004).

review—Congress has provided an alternative mechanism to address controverted
issues that prisoners who have already been sentenced may seek to resolve. See Prison
Litigation Reform Act of 1995, Pub. L. No. 104-134, §§ 801–810, 110 Stat. 1321-66
(1996) (codified as amended in scattered sections of 11, 18, 28, and 42 U.S.C.); United
States v. Arevalo, 628 F.3d 93, 99 (2d Cir. 2010) (holding that an appeal waiver may
bar an appeal premised on a district court’s alleged violation of Rule 32(i)(3), and that
“to the extent the information in the presentence report causes [the defendant]
problems with the Bureau of Prisons, he can seek to address any issues through the
Bureau of Prisons’ administrative remedy program”) (citing 28 C.F.R. §§ 542.10–.19
and Johnson v. Testman, 380 F.3d 691, 693 (2d Cir. 2004) (describing the
administrative remedy program)).

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 Even assuming arguendo that the district court in this case erred by

insufficiently addressing Wagner-Dano’s objections to the PSR, we cannot say

that the error is plain. To be “plain,” an error must be so obvious that “the trial

judge and prosecutor were derelict in countenancing it, even absent the

defendant’s timely assistance in detecting it.” United States v. Frady, 456 U.S.

152, 163 (1982). That is clearly not the case here.

Most of the objections Wagner-Dano raised that were not disposed of by

the district court’s adoption of the PSR—regarding, for instance, the proper way

to characterize the Town of Lewis’s loss and Wagner-Dano’s motives for sending

the letter to the BFC board of directors, for selling her assets, and for

transferring her house to her parents—were at least arguably not “controverted

matters” within the meaning of Rule 32(i)(3). The Government did not disagree

with her assertions and the PSR did not directly conflict with Wagner-Dano’s

claims. Moreover, to the extent the PSR did contradict Wagner-Dano’s factual

assertions, the district court’s adoption of the PSR’s findings satisfied Rule

32(i)(3)’s requirements.

Granted, Wagner-Dano’s objection that her $50,000 repayment to the

Town of Lewis in October 2009 was intended to make restitution rather than to

cover up her theft clearly conflicts with the PSR’s statement that, “[a]ccording

to the Town Supervisor, the defendant deposited this money into the Town bank

25
account because . . . she did not want her theft to be discovered.” The court’s

adoption of the PSR did not resolve this factual dispute, because the PSR itself

took no position with regard to it. We cannot conclude on this record, however,

that the district court’s failure to address this issue prejudiced Wagner-Dano’s

sentence. And regardless, we do not believe that the alleged failure by the

district court to address this objection so “seriously affect[ed] the fairness,

integrity, or public reputation of judicial proceedings” that we should exercise

our discretion to correct it. Marcus, 130 S. Ct. at 2164.

II. Substantive Reasonableness

Wagner-Dano next argues that her sentence of 78 months’ imprisonment

is substantively unreasonable based on her voluntary repayment efforts, lack of

criminal history, work history, low risk of recidivism, and family status. She

also points out that the victims’ loss amount ($1,169,717.74) was at the bottom

end of the range for a sixteen-level enhancement (between $1,000,000.01 and

$2,500,000, see U.S.S.G. § 2B1.1(b)(1)), and that the number of victims (56) was

also at the bottom end of the range for a four-level enhancement (between 50 and

249 victims, see U.S.S.G. § 2B1.1(b)(2)).

“We will . . . set aside a district court’s substantive determination only in

exceptional cases where the trial court’s decision cannot be located within the

range of permissible decisions.” Cavera, 550 F.3d at 189 (emphasis and internal

26
quotation marks omitted). Wagner-Dano’s sentence is within the Guidelines

range, and although we do not presume that a within-Guidelines sentence is

substantively reasonable, see United States v. Dorvee, 616 F.3d 174, 183 (2d Cir.

2010), “in the overwhelming majority of cases, a Guidelines sentence will fall

comfortably within the broad range of sentences that would be reasonable in the

particular circumstances.” United States v. Friedberg, 558 F.3d 131, 137 (2d Cir.

2009). We see nothing in this record to indicate that the district court imposed

an unacceptably harsh sentence here.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

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