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United States v. Blanco

filed: September 15, 1989.

UNITED STATES OF AMERICA
v.
JOSE C. BLANCO, APPELLANT



On Appeal from the United States District Court for the Middle District of Pennsylvania, Crim. No. 84-00176-02.

Gibbons, Chief Judge, Hutchinson, Circuit Judge and Reed, District Judge.*fn*

Author: Gibbons

Opinion OF THE COURT

GIBBONS, Chief Judge

Jose C. Blanco appeals from a judgment of sentence imposed following his guilty plea to charges of conspiracy, 21 U.S.C. § 846, cocaine distribution, 21 U.S.C. § 841(a), and income tax evasion, 26 U.S.C. § 7206(1). The indictment in which he was charged with these offenses also accused several other alleged co-conspirators. Prior to sentence he moved for disclosure of the pre-sentence investigation reports on four co-conspirators who had previously been sentenced. This motion was denied. He also moved to correct alleged inaccuracies in his own presentence report. The district court's treatment of that motion is discussed in detail hereafter. Blanco contends that he should be resentenced. We conclude that the district court did not abuse its discretion in denying Blanco's motion for discovery of the presentence reports on other defendants. We conclude that noncompliance with Fed.R.Crim.P. 32(c)(3)(D) requires that Blanco's sentence be vacated, and the case remanded for further proceedings.

A.

The Discovery Motion

The co-defendants whose presentence reports Blanco moved to discover all were apprehended, cooperated, and entered guilty pleas during the four year period in which Blanco remained a fugitive. The motion advanced no reason why information in those reports would add significantly to what Blanco already knew with respect to factors legitimately bearing on his sentence. There is a general presumption that the courts will not grant third parties access to the presentence reports of other individuals. United States Department of Justice v. Julian, 486 U.S. 1, 108 S. Ct. 1606, 1613, 100 L. Ed. 2d 1 (1988). Blanco's argument does not rest on any specific showing of the need for disclosure in the interest of justice, but on opposition to the general policy of nondisclosure. The court did not abuse its discretion in refusing to depart from the general practice. We are not free to impose a different general practice.

B.

The Motion to Correct Inaccuracies

Mr. Blanco alleged inaccuracies in his own presentence report as follows:

1. At page 1, paragraph 3, 3 lines from the bottom, "two kilograms" shall be amended to "one kilogram".

2. At page 7, paragraph 2, 13 lines from the top of the page "about seven kilograms" shall be amended to "5.53 kilograms".

3. At page 4, paragraph 1, after the second sentence four new sentences shall be added: "There were three participants in the robberies. Mr. Blanco served as the lookout and driver. The other two men entered the premises to perform the robberies, and one of those men displayed the .45 caliber handgun. The gun was never fired, and no injuries otherwise resulted."

4. At page 2, paragraph 2 after the first sentence in that paragraph a new sentence shall be added that, "There is no evidence that any of the drugs seized had in fact been cut." Additionally, in the second sentence of that paragraph the word "shortly" shall be deleted and the phrase "within 12 hours or less" shall be inserted.

5. At page 2, paragraph 2 a new sentence shall be added immediately following the weight and purity columns that "the average purity of the cocaine originating with Mr. Blanco and seized by the Government was therefore 51.5%."

At a hearing on the motion to correct these inaccuracies the following colloquy occurred:

MR. FETTERHOFF: Good morning, Judge. Judge, we do have a motion outstanding which I filed on February 15 to correct the presentence report.

THE COURT: Well, Mr. Ruth, the probation officer who prepared the report, wrote me a letter yesterday. I assume you received a copy.

MR. FETTERHOFF: Yes.

THE COURT: I don't know that anymore than -- I'm going to direct that a copy of Mr. Ruth's letter be attached to the presentence report. I certainly don't think that there was any conscious effort to make it appear that Mr. Blanco held the gun. I think the fact reported in the report was that the gun was used in the robbery and I let it rest at that.

MR. FETTERHOFF: Well, I don't mean to interrupt. I'm not interested in the motives of the probation office, although I am --

THE COURT: Well, you certainly --

MR. FETTERHOFF: Well, then I say again I think that that sentence was irresponsibly drafted. I'm sorry to say that. I think that's inherent.

THE COURT: Well, I think irresponsible is strong language.

MR. FETTERHOFF: Well, it was all in a single sentence, the whole case summarized between commas, and the gun appeared very plainly to have been used by Mr. Blanco personally.

THE COURT: That's how you read it.

MR. FETTERHOFF: The document is going to become a principal document relied upon by the Parole Commission at a later determination, and that's why I think Mr. Blanco has ...


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