United States v. Tate

*472KAREN NELSON MOORE, Circuit Judge,

dissenting.

The majority rejects Lando V. Tate’s (“Tate”) claim that the district court violated Rule S2(i)(l)(A) of the Federal Rules of Criminal Procedure because the majority subjects Tate’s claim to plain-error review on the ground that Tate did not sufficiently articulate his objection at sentencing. Maj. Op. at 465-66. Because I believe that Tate appropriately raised this issue before the district court and because our binding case law requires “literal compliance” with Rule 32’s verification provision, I would vacate Tate’s sentence and remand for re-sentencing. Accordingly, I respectfully dissent.

Rule 32(i)(l)(A) provides that at sentencing the court “must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.” At the start of Tate’s sentencing hearing, the following exchange occurred:

The Court: How about you, Mr. Tate, have you reviewed the Presentence Report in your case?
The Defendant: No, sir.
The Court: Well, have you had the opportunity to review the Presentence Report in your case?
The Defendant: No, sir.

J.A. at 233 (Sent. Hr’g Tr. 9/21/2006 at 3). The court then asked Tate’s counsel whether Tate had been furnished with a copy of the report. When Tate’s counsel said that Tate had received a copy, the court declared “[a]ll right. He has had the opportunity to review it.” Id. The court then asked Tate’s counsel if they had discussed the report, and counsel’s response referred to discussions “months ago.” Id.

The colloquy above should have clearly demonstrated to the district court that proceeding with the sentencing hearing would violate Rule 32(i)(l)(A)’s requirement that the court “verify that the defendant and the defendant’s attorney have read and discussed the presentence report.” Any discussions held “months ago” could not possibly have pertained to the revised presentence report, which had been completed only a short time prior to the hearing. Thus counsel effectively confirmed that he had not discussed the revised report with his client. The defendant himself twice stated he had not reviewed the report. The court should have briefly adjourned the hearing and given defendant and his counsel time to review the report to put the matter beyond any doubt.1 The court’s apparent “finding” that Tate “had the opportunity to review it” does not satisfy the Rule’s command that the court “verify that the defendant and the defendant’s attorney have read and discussed ” the report. Fed.R.Crim.P. 32(i)(1)(A) (emphasis added).

The majority avoids confronting the district court’s Rule 32(i)(l)(A) error by subjecting Tate’s claim to plain-error review, stating that Tate did not sufficiently articulate his objection at sentencing. Maj. Op. at 465-66. I disagree. The district court asked Tate two questions about whether *473he had reviewed or had an opportunity to review the report, and both times Tate replied “No, sir.” Tate’s answers adequately apprised the court that Tate had not read the report, which Rule 32(i)(1)(A) requires. To preserve a claim of error, a party need only “inform! ] the court ... [of] the party’s objection to the court’s action and the grounds for that objection.” Fed.R.Crim.P. 51(b). Tate’s answers to the district court’s questions informed the court that if the hearing proceeded, the court would have failed its verification obligation under Rule 32(i)(1)(A). Nothing more was required.

Because Tate’s responses to the district court’s questions sufficiently raised the issue of the hearing’s compliance with Rule 32(i)(l)(A), and because our precedent is very clear that when a district court fails to fulfill its “duty to determine that [the defendant] and his attorney had read and discussed [the] presentence report” the court’s “failure to do so requires resen-tencing,” I would vacate Tate’s sentence and remand for resentencing. United States v. Mitchell, 243 F.3d 953, 955 (6th Cir.2001). Accordingly, I respectfully dissent.

. The record indicates that Tate has a history of non-cooperation, but "frustration with a less-than-cooperative defendant does not justify proceeding with sentencing in violation of Rule 32( [c] )(3)(A)'s requirements.” United States v. Cruse, 59 Fed.Appx. 72, 81 (6th Cir.2003) (Prior to amendments taking effect in December 2002, Rule 32(i)(1)(A) was found at Rule 32(c)(3)(A)). Further, despite any frustration, the district court in fact conducted an otherwise very thorough and commendable hearing. Nonetheless, conducting an otherwise admirable hearing does not excuse the decision to proceed in the face of Tate's denial that he had read the presentence report and counsel's statement to the effect that he had not discussed the revised presentence report with his client.