Published on:

Attorney’s failure to comply with deadline was fatal to the sentencing objections

In U.S. v. Edwin Aguilar-Ibarra the defendant was convicted of a conspiracy to commit a Hobbs Act robbery, which is a federal crime under 18 U.S.C. 1951. The facts of this conviction arose from a robbery of a Florida warehouse by four masked man brandishing pistols. The intruders bound gagged and force the warehouse employee into a warehouse into a back office where they assaulted him the assailants took off with one million dollars’ worth of cellular phones. The defendant’s presentence investigation report recommended a two-level of his sentencing guideline section 2B3.1(b)(3)(A) because the robbery victim sustained bodily injury. The presentence investigation report recommended the enhancement because the warehouse employee went to the hospital suffering minor injuries as a result of the assault.

The defendant did not file the objections within the 14 days required by Federal Rule of Criminal Procedure 32 (f)(1). The defense attorney objected to the enhancement at sentencing arguing there was no evidence the employee sustain bodily injuries and claimed the enhancement had not been applied that the co-conspirators sentencing. At sentencing the probation officer confirmed that the co-conspirators did receive the enhancement at their respective sentencing hearings.

On appeal the defendant argued that the district court erred in rejecting his objection to the bodily injury enhancement as untimely. The defendant claimed that the time limit was an applicable here because he and the government agreed the enhancement should not apply. In any event, the court exercised its discretion to waive the timeliness requirement by reconsidering and ruling on the merits of the objection.

Rule 32 requires that within 14 days of receiving the PSI the parties must date in writing any objections to the sentencing guideline range. The court may extend the 14 day deadline for good cause. The appellate court found that the defendant did not comply with a 14 day deadline, and the court also rejected the defendant’s argument that the deadline was not applicable because the parties agreed that the bodily injury enhancement could not apply. The rule provides any objections to the presentence investigation report, whether or not they are shared by the parties, must be submitted in advance of sentencing. The court explained the reasons for the timely objection is to allow the district court the opportunity to meaningfully exercise its sentencing authority based on complete and accurate account of all relevant information. The deadline is meant to facilitate the process by ensuring the probation officer has sufficient time to investigate and resolve any potential inaccuracy is in the PS I regardless of whether those inaccuracy is are perceived by one or both parties. The district court has an independent obligation to calculate the sentencing guidelines correctly and is not bound by the agreements of the parties.

The defendant did not show good cause for failing to raise an objection to the bodily injury enhancement and the court did not waive the timeliness requirement. The appeal from the enhancement was viewed on a plain error standard and the court found that the enhancement was not plainly erroneous.