United States v. 2006-10-23 | 05-30584 | USA VSANTIAGO | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 05-30584
Plaintiff-Appellee, D.C. No.
v.  CR-04-00211-BLW
JESUS ANTONIO SANTIAGO, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Idaho
Terry J. Hatter, District Judge, Presiding
Argued and Submitted
September 15, 2006—Portland, Oregon
Filed October 23, 2006
Before: Barry G. Silverman and Ronald M. Gould,
Circuit Judges, and John S. Rhoades, Sr.,* District Judge.
Opinion by Judge Gould
*Senior United States District Judge for the Southern District of Cali-
fornia, sitting by designation.
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COUNSEL
Greg J. Fuller, Fuller Law Offices, Twin Falls, Idaho, for
defendant-appellant Jesus Antonio Santiago.
Michelle R. Mallard and Alan Burrow (argued), Assistant
United States Attorneys, Pocatello, Idaho, for plaintiff-
appellee United States of America.
OPINION
GOULD, Circuit Judge:
We consider whether the plain error standard of review
applies when the district court expressed “concern” about how
a Presentence Report (“PSR”) calculated the quantity of drugs
attributable to the defendant, but the defendant did not object
to any part of the PSR. We hold that in such a case the plain
error standard of review applies. Concluding here that there
was no plain error, we affirm the defendant’s sentence.
On August 4, 2005, Jesus Antonio Santiago pled guilty to
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one count of conspiracy to distribute methamphetamine.
Because the approximately three kilograms of methamphet-
amine seized or purchased by government agents from Santi-
ago and his co-conspirators did not reflect the full scale of
Santiago’s offense, the PSR, pursuant to the Federal Sentenc-
ing Guidelines, estimated the quantity of methamphetamine
attributable to Santiago. See U.S.S.G. § 2D1.1 cmt. n.12
(2005). The PSR calculated this as being between 17 and
104.3 kilograms.1 The PSR based its estimate on interviews
with persons who purchased methamphetamine from and used
methamphetamine with Santiago. Persons interviewed said
that Santiago delivered between one and five pounds of
methamphetamine per week over an eighteen to twenty-three
month period. Santiago did not file written objections to any
facts recited in the PSR.
At Santiago’s sentencing hearing on November 1, 2005, the
district court explicitly expressed serious doubts as to the
accuracy of the drug-quantity estimates in the PSR.2 The dis-
trict court also acknowledged that “I have some concern about
how the total amount of drugs was arrived at. Nevertheless,
I’m convinced that there’s a sizable amount.” Notwithstand-
ing the district court’s observations, Santiago did not object
to the drug-quantity calculations at the sentencing hearing.
The district court then sentenced Santiago to 300 months
imprisonment with ten years supervised release. On appeal,
Santiago argues that the district court did not properly calcu-
1An attributable quantity of fifteen kilograms or more of methamphet-
amine results in the highest base offense level possible under the Sentenc-
ing Guidelines. See U.S.S.G. § 2D1.1(c)(1).
2The district court stated:
While clearly we often have to make estimates about the amount
of drugs involved, the estimates here are just beyond, I think, rea-
sonableness, just accepting what various individuals [who] have
been involved have indicated, much of which, I would think,
would be an opportunity for these individuals to try to whitewash
their own involvement.
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late the drug quantity attributable to him, and that this was
reversible error.
[1] When a party does not lodge a specific objection in the
district court, yet asserts error on appeal, we review under our
familiar plain error standard:
Before an appellate court can correct an error not
raised at trial, there must be (1) error, (2) that is
plain, and (3) that affects substantial rights. If all
three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceed-
ings.
United States v. Maciel-Vasquez, 458 F.3d 994, 996 n.3 (9th
Cir. 2006) (internal quotation omitted). Because Santiago did
not object to the drug-quantity calculations in the PSR before
sentencing or at the sentencing hearing, the government
argues that we may review only for plain error. Santiago
urges that because the district court expressed concerns about
the PSR’s quantity calculations, no objection by counsel was
necessary, and that we are not limited to plain error review.3
We reject Santiago’s argument and conclude that absent spe-
cific objection by the defendant, the plain error standard con-
trols even when the district court expresses concern about a
PSR.
[2] “A specific objection provides the district court with an
opportunity to address the error in the first instance and
allows this court to engage in more meaningful review.”
United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004); see
United States v. Carter, 219 F.3d 863, 866-67 (9th Cir. 2000)
3If not limited to plain error review, then we review the district court’s
factual determination for clear error. United States v. Knows His Gun, 438
F.3d 913, 917 n.2 (9th Cir. 2006).
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(“[R]esolving a defendant’s factual objections to the PSR on
the record ensures meaningful appellate review of the sen-
tence.”). Though the district court may have had concerns
about the PSR, when counsel for Santiago did not object, the
district court was entitled to conclude, without further analy-
sis, that its concerns were unjustified. See Fed. R. Crim. P.
32(i)(3)(A) (“At sentencing, the court . . . may accept any
undisputed portion of the presentence report as a finding of
fact . . . .”).
[3] Other circuits addressing similar issues have reached
the same conclusion. See Bostic, 371 F.3d at 871-72 (review-
ing a sentence for plain error when the defendant filed a
downward-departure motion before the sentencing hearing,
the district court asked for the opinion of government counsel,
and the government failed to object); United States v. Hans-
ley, 54 F.3d 709, 715 (11th Cir. 1995) (applying the plain
error standard of review when the district court asked for
objections to the PSR’s drug-quantity attribution and the
defendant provided none).
[4] We thus hold that our review is limited to review for
plain error when counsel has not objected to any part of the
PSR, whether or not the district court has expressed concerns,
doubts, or qualifications regarding the PSR’s drug-quantity
calculation. In an adversarial system, it is counsel’s duty to
object to any part of a PSR that a party asserts to be erroneous.4
[5] Santiago nevertheless argues that the district court
plainly “erred in failing to set forth . . . the factual basis for
determining Santiago’s individual conduct and responsibility
4Our conclusion is reinforced by the guidance of a respected procedural
treatise, which states that the rule requiring an objection to avoid review
for only plain error “is essential to the orderly administration of civil jus-
tice” because it alerts the trial court to possible errors and allows the
opportunity to correct them in the first instance, saving the parties and the
public the expense of an appeal. 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 2472 (2d ed. 1995).
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relative to other co-conspirators.” However, when a defendant
fails to object to the facts set forth in the PSR, the district
court is not required to make any factual findings. See United
States v. Charlesworth, 217 F.3d 1155, 1160 (9th Cir. 2000)
(“Charlesworth did not contest any of the information in the
PSR; therefore, there was no need for the court to make any
findings.”); see also United States v. Ameline, 409 F.3d 1073,
1085 (9th Cir. 2005) (“Of course, the district court may rely
on undisputed statements in the PSR at sentencing.”). Stated
another way, by indicating concern, the district court was at
most inviting an objection; when no objection was made, the
district court had no disputed fact to resolve.
[6] Here, the PSR calculated the drug quantity individually
attributable to Santiago5 and Santiago did not dispute it.
Because, absent objection, the district court did not err in rely-
ing on the PSR, and because the PSR calculated the drug
quantity individually attributable to Santiago, there was no
plain error.6
AFFIRMED.
5The PSR estimated that Santiago delivered between 17 and 104.3 kilo-
grams of methamphetamine and concluded, “[Santiago] is responsible for
delivering in excess of 15 kilograms of methamphetamine.”
6Santiago relies on the memorandum opinion of the District Court for
the District of Columbia in United States v. Haynes, 906 F. Supp. 5, 9
(D.D.C. 1995), for the proposition that the district court may not merely
adopt drug quantity calculations in a PSR, but rather must explicitly deter-
mine the amount of drugs for which the defendant is responsible. Haynes
in turn relied upon the decision of the D.C. Circuit in United States v.
Saro, 24 F.3d 283 (D.C. Cir. 1994). Saro stated that the failure to explic-
itly determine the amount of drugs for which the defendant is responsible,
standing alone, is not plain error. Id. at 288 (“Without more, this lack of
explicitness would not constitute plain error . . . .”). Santiago’s unduly
broad reading of D.C. Circuit law is thus unpersuasive.
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