United States Court of Appeals
For the Eighth Circuit
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No. 21-3299
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United States of America
Plaintiff - Appellee
v.
Timothy G. Ossana
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri
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Submitted: September 23, 2022
Filed: December 7, 2022
[Unpublished]
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Before SMITH, Chief Judge, KELLY and GRASZ, Circuit Judges.
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PER CURIAM.
Timothy G. Ossana pled guilty under 18 U.S.C. § 922(g)(1) to being a felon
in possession of a firearm. The district court sentenced him to 45 months of
imprisonment. Ossana appeals the sentence, arguing the district court committed
procedural error when it calculated the advisory sentencing range under the United
States Sentencing Guidelines Manual (“Guidelines”), imposed a substantively
unreasonable sentence, and failed to follow the procedures of Federal Rule of
Criminal Procedure 32(i)(3).
Ossana has failed to show the district court committed procedural error when
calculating his Guidelines range. “In reviewing a sentence for significant procedural
error, we review a district court’s factual findings for clear error and its interpretation
and application of the guidelines de novo.” United States v. Bryant, 606 F.3d 912,
918 (8th Cir. 2010). Ossana primarily asserts the district court procedurally erred
by overruling certain objections he made to the presentence investigation report
(“PSR”). But after careful review of the arguments and the record, we detect no
misinterpretations of the Guidelines or clearly erroneous factual determinations by
the district court.
We likewise reject Ossana’s argument that his sentence is substantively
unreasonable. At sentencing, Ossana asked for a 46-month sentence. Thereafter,
the district court sentenced Ossana to only 45 months. Ossana “cannot complain”
the district court gave him a sentence more favorable than he asked for. See United
States v. Thompson, 289 F.3d 524, 526 (8th Cir. 2002). Regardless, Ossana has
failed to overcome the presumption that the within-Guidelines sentence is
substantively reasonable. See United States v. Garcia, 946 F.3d 413, 419 (8th Cir.
2019).
We next address Ossana’s argument that the district court did not comply with
Rule 32(i)(3), which we review de novo. See United States v. Davies, 380 F.3d 329,
332 (8th Cir. 2004). Rule 32(i)(3) generally provides that for all disputed portions
of a PSR a sentencing court must either rule or determine a ruling is unnecessary,
and further provides the sentencing court “must append a copy of the court’s
determinations under this rule to any copy of the presentence report made available
to the Bureau of Prisons.” Fed. R. Crim. P. 32(i)(3)(B)–(C).
Ossana contends that the district court did not append an accurate copy of its
statement of reasons to the PSR that was provided to the Bureau of Prisons (“BOP”).
In the statement of reasons provided to the BOP, the district court noted that it
accepted the PSR unchanged. To the contrary, several paragraphs of the PSR were
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not considered in the sentencing determination, and several of Ossana’s other
objections were overruled. Therefore, the district court erred in failing to append to
the PSR a statement of reasons that accurately reflected its rulings on disputed
portions of the PSR. Its failure to do so is important because the BOP makes
“substantial use” of the PSR, which includes the possibility of relying upon improper
facts “in the making of critical determinations relating to custody or parole.” Fed.
R. Crim. P. 32 advisory committee’s note to 1983 amendment.
We are left only to consider the appropriate remedy for this legal error.
Because the sentence is substantively reasonable, we do not find it necessary to
vacate Ossana’s sentence and remand for complete resentencing. But simply
attaching the transcript from the sentencing hearing, as the government suggests, is
insufficient because it increases the risk of the BOP overlooking the discrepancies.
We thus conclude the district court should attach an amended statement of reasons
to ensure any paragraphs of the PSR that were not considered by the district court
do not negatively impact Ossana while he serves his sentence. Accordingly, we
reverse and remand for the district court to amend its statement of reasons to
accurately reflect its sentencing determinations and append the accurate copy to the
PSR made available to the BOP.
For the above reasons, we reject Ossana’s procedural error arguments, affirm
the substantive reasonableness of Ossana’s sentence, and reverse and remand solely
for the district court to amend its statement of reasons in compliance with Rule
32(i)(3) of the Federal Rules of Criminal Procedure. 1
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1
We grant Ossana’s two pending motions to supplement the record. Ossana’s
counsel has also filed a motion to withdraw as appointed counsel. Allowing counsel
to withdraw at this time would not be consistent with the Eighth Circuit’s 1994
Amendment to Part V of the Plan to Implement the Criminal Justice Act of 1964.
We therefore deny counsel’s motion to withdraw as premature, without prejudice to
counsel refiling the motion upon fulfilling the duties set forth in the Amendment.
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