United States of America v. Stephen Espalin

*The Honorable David M. Lawson, United States District Judge for
the Eastern District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0422P (6th Cir.)
File Name: 03a0422p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
STEPHEN ESPALIN,
Defendant-Appellant.
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No. 02-5546
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 02-20003—Julia S. Gibbons, Circuit Judge.
Argued: September 9, 2003
Decided and Filed: December 3, 2003
Before: GUY and DAUGHTREY, Circuit Judges;
LAWSON, District Judge.*
_________________
COUNSEL
ARGUED: M. Dianne Smothers, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
2 United States v. Espalin No. 02-5546
Appellant. Timothy R. DiScenza, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: J. Patten Brown, III, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for
Appellant. Timothy R. DiScenza, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
GUY, J., delivered the opinion of the court, in which
DAUGHTREY, J., joined. LAWSON, D. J. (pp. 4-15),
delivered a separate concurring opinion.
_________________
OPINION
_________________
RALPH B. GUY, JR., Circuit Judge. Defendant, Stephen
Espalin, entered a guilty plea to an information charging him
with threatening the President of the United States in
violation of 18 U.S.C. § 871. The trial judge imposed a
sentence of 18 months’ imprisonment to be followed by two
years of supervised release. No objections were raised prior
to sentencing concerning either the applicability of the
guidelines applied or the sentencing range. Defendant filed
a motion for a downward departure, which was denied.
Espalin now appeals claiming the court erred in not
granting his motion for a downward departure. No claim is
made that the trial judge was unaware of her authority to grant
a downward departure. Because we have no jurisdiction to
consider an appeal from the denial of a downward departure
under these circumstances, we affirm.
I.
We have repeatedly held, as have all other circuits, that
where a sentence is not imposed in violation of law or is not
the result of an incorrect application of the guidelines, the
refusal of the trial judge to grant a downward departure is not

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No. 02-5546 United States v. Espalin 3
an issue cognizable on appeal. United States v. Byrd, 53 F.3d
144, 145 (6th Cir. 1995). The defendant acknowledges as
much, but attempts to avoid this result by arguing that the
probation officer overstepped her bounds in preparing the
presentence report and became an advocate arguing against
the granting of the requested downward departure.
Our review of the sentencing hearing, as well as the
probation report itself, convinces us that no impropriety
occurred. More importantly, even if we were to hold that the
probation officer overstepped her bounds, the result would not
change. The trial judge is a very experienced jurist, and there
is no indication that she abdicated her decisional role by
merely rubber-stamping the recommendation of the probation
officer. Judge Lawson in his concurrence thoughtfully sets
forth the proper role of the probation officer; however, in the
last analysis the trial judge is the filter between the
recommendation of the probation officer and the sentence
actually imposed. Appellate relief would be available only if
improper actions of a probation officer resulted in the trial
judge making a reviewable sentencing error of a type
requiring reversal or remand.
The defendant also devotes a good portion of his brief to a
polemic against the sentencing guidelines and the lack of
sentencing discretion that remains with a federal trial judge.
Although many federal judges might echo these sentiments,
they are addressed to the wrong audience. Congress
established the guideline system, and only Congress can
change that system.
AFFIRMED.
4 United States v. Espalin No. 02-5546
_________________
CONCURRENCE
_________________
DAVID M. LAWSON, District Judge (concurring). I agree
with the majority’s conclusion that the denial of a downward
departure motion by a sentencing judge who acknowledges
her authority to depart is beyond our power to review. See
United States v. Taylor, 286 F.3d 303, 305 (6th Cir. 2002). I
also fully concur with the holding that the probation officer’s
statements in the presentence report and its addendum did not
violate any of the defendant’s substantial rights. Whatever
the propriety of the comments in a presentence report, it
would be a rare case indeed where a probation officer’s
rhetoric could overwhelm the independent judgment of a
sentencing court. I write separately, however, to express my
views on the subject of the proper role of a presentence
investigator under the Sentence Reform Act of 1984 and the
Federal Rules of Criminal Procedure, from the point of view
of a district court judge sitting on this court by designation.
I.
After the defendant pleaded guilty to threatening the
President of the United States, a United States Probation
Officer prepared a presentence report (PSR) calculating a total
offense level of 6, and a criminal history category of VI,
yielding a guideline range of 12 to 18 months. The
statutorily-authorized maximum sentence for the offense is
five years. 18 U.S.C. § 871. The probation officer included
language in the PSR commenting on “factors that may
warrant departure,” stating:
Pursuant to § 4A1.3, “If reliable information indicates
that the criminal history category does not adequately
reflect the seriousness of the defendant’s past criminal
conduct or the likelihood that the defendant will commit
other crimes, the court may consider imposing a sentence

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No. 02-5546 United States v. Espalin 5
departing from the otherwise applicable guideline range.”
The defendant has 27 criminal history points. The Court
may establish that Criminal History Category VI does
not adequately reflect the seriousness of the defendant’s
criminal history given the nature of the prior offenses.
Since at least 1975, the defendant has consistently been
arrested for crimes involving fraud, manipulation, and
deceit in order to avoid a law-abiding lifestyle. There is
a strong likelihood that the defendant will continue this
pattern and victimize more individuals.
J.A. at 75.
The defendant filed objections to this section, contending
that the probation officer failed to recognize that the
defendant is entitled to a downward departure for diminished
capacity and that this was an “obvious” factor the probation
officer missed. The defendant also called into question the
probation officer’s “objectivity” and requested that the
probation officer “not be allowed any ex parte communication
with the court.” J.A. at 10. In addition, he filed a motion for
a downward departure on the basis of USSG § 5K2.13, which
states:
A sentence below the applicable guideline range may be
warranted if the defendant committed the offense while
suffering from a significantly reduced mental capacity.
However, the court may not depart below the applicable
guideline range if (1) the significantly reduced mental
capacity was caused by the voluntary use of drugs or
other intoxicants; (2) the facts and circumstances of the
defendant’s offense indicate a need to protect the public
because the offense involved actual violence or a serious
threat of violence; or (3) the defendant’s criminal history
indicates a need to incarcerate the defendant to protect
the public. If a departure is warranted, the extent of the
departure should reflect the extent to which the reduced
mental capacity contributed to the commission of the
offense.
6 United States v. Espalin No. 02-5546
In response to the motion, the probation officer
supplemented the PSR with an addendum that contained the
following language:
Section 5K2.13, Diminished Capacity, allows for a
sentence below the guideline range if the defendant
committed the offense while suffering from a
significantly reduced mental capacity. Application Note
1 to § 5K2.13 states that “significantly reduced mental
capacity” means that the defendant has a significantly
impaired ability to understand the wrongfulness of the
behavior comprising the offense or an impaired ability to
control behavior that the defendant knows is wrongful.
Section 5K2.13 also states that the Court may not
(emphasis added) depart below the guideline range if the
defendant’s criminal history indicates a need to
incarcerate the defendant to protect the public. The
defendant has accumulated a total of 27 criminal history
points. He has two previous convictions for sexual
offenses, as well as numerous convictions for theft and
fraud. A psychological evaluation was conducted by
Emily Fallis, Ph.D. in September 2001. In her
evaluation, Dr. Fallis stated, “Mr. Espalin acknowledged
a lifestyle of conning others, particularly young men, and
fraudulent behavior beyond his criminal record for the
past several years.” Examples of such behavior include
taking long bus trips and staying in hotels without
paying. In addition, the defendant “confessed he
‘conned’ the man he allegedly tried to frame in the
current case (Julian) ‘out of a lot of money.’ He added
that he twice attempted to steal Julian’s car as well.” The
defendant’s criminal convictions and examples of
uncharged fraudulent behavior provided to Dr. Ellis are
evidence of the defendant’s extensive history of
victimization of others. Based on the defendant’s pattern
of criminal activity, it is likely that the defendant will
continue to engage in criminal behavior.

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No. 02-5546 United States v. Espalin 7
In addition, the psychological evaluation conducted by
Dr. Fallis does not indicate that the defendant has a
significantly reduced mental capacity. She diagnosed the
defendant with Malingering and Borderline Personality
Disorder. According to Dr. Fallis, “a personality
disorder refers to a pattern of inner experience and
behaviors present since youth which leads to social or
occupational impairment or to both sorts of impairments.
This enduring pattern is inflexible and pervasive.” There
is no evidence to suggest that the personality disorder
contributed to diminished capacity. During the study
period, the defendant also admitted to Dr. Fallis that he
was “80 per cent” regretful that he did not recant his
threat to harm President Bush. He stated that a part of
him wants to continue making the threats because he
enjoys the attention that he is getting.
During an interview with the probation officer, Espalin
stated that he told the police that his friend was making
bombs because he was angry at the friend for ending an
affair. He also admitted that he threatened the President
because he was mad. It appears that the defendant acted
on his anger without considering the consequences of his
behavior; however, this does not indicate a significantly
reduced mental capacity.
J.A. 124-25.
The defendant objected to this commentary below, and now
argues on appeal that the probation officer’s comments are
improper because they constitute advocacy, whereas the
proper role of a probation officer, according to the defendant,
is to serve as a dispassionate reporter of facts in the service of
the sentencing court.
8 United States v. Espalin No. 02-5546
II.
The proper content of a PSR is prescribed by Federal Rule
of Criminal Procedure 32(b), which in its form at the time of
the defendant’s sentencing stated:
(4) Contents of the Presentence Report. The presentence
report must contain–
(A) information about the defendant’s history and
characteristics, including any prior criminal record,
financial condition, and any circumstances that,
because they affect the defendant’s behavior, may be
helpful in imposing sentence or in correctional treatment;
(B) the classification of the offense and of the
defendant under the categories established by the
Sentencing Commission under 28 U.S.C. § 994(a),
as the probation officer believes to be applicable to
the defendant’s case; the kinds of sentence and the
sentencing range suggested for such a category of
offense committed by such a category of defendant
as set forth in the guidelines issued by the
Sentencing Commission under 28 U.S.C.
§ 994(a)(1); and the probation officer’s explanation
of any factors that may suggest a different sentence-
-within or without the applicable guideline-- that
would be more appropriate, given all the
circumstances;
(C) a reference to any pertinent policy statement
issued by the Sentencing Commission under 28
U.S.C. § 994(a)(2);
(D) verified information, stated in a
nonargumentative style, containing an assessment of
the financial, social, psychological, and medical
impact on any individual against whom the offense
has been committed;
(E) in appropriate cases, information about the
nature and extent of nonprison programs and
resources available for the defendant;
(F) in appropriate cases, information sufficient for

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No. 02-5546 United States v. Espalin 9
the court to enter an order of restitution;
(G) any report and recommendation resulting from
a study ordered by the court under 18 U.S.C.
§ 3552(b); and
(H) any other information required by the court.
(5) Exclusions. The presentence report must exclude:
(A) any diagnostic opinions that, if disclosed, might
seriously disrupt a program of rehabilitation;
(B) sources of information obtained upon a promise
of confidentiality; or
(C) any other information that, if disclosed, might
result in harm, physical or otherwise, to the
defendant or other persons.
(6) Disclosure and Objections.
(A) Not less than 35 days before the sentencing
hearing--unless the defendant waives this minimum
period--the probation officer must furnish the
presentence report to the defendant, the defendant's
counsel, and the attorney for the Government. The
court may, by local rule or in individual cases, direct
that the probation officer not disclose the probation
officer’s recommendation, if any, on the sentence.
(B) Within 14 days after receiving the presentence
report, the parties shall communicate in writing to
the probation officer, and to each other, any
objections to any material information, sentencing
classifications, sentencing guideline ranges, and
policy statements contained in or omitted from the
presentence report. After receiving objections, the
probation officer may meet with the defendant, the
defendant’s counsel, and the attorney for the
Government to discuss those objections. The
probation officer may also conduct a further
investigation and revise the presentence report as
appropriate.
(C) Not later than 7 days before the sentencing
hearing, the probation officer must submit the
presentence report to the court, together with an
addendum setting forth any unresolved objections,
10 United States v. Espalin No. 02-5546
the grounds for those objections, and the probation
officer’s comments on the objections. At the same
time, the probation officer must furnish the revisions
of the presentence report and the addendum to the
defendant, the defendant's counsel, and the attorney
for the Government.
(D) Except for any unresolved objection under
subdivision (b)(6)(B), the court may, at the hearing,
accept the presentence report as its findings of fact.
For good cause shown, the court may allow a new
objection to be raised at any time before imposing
sentence.
Fed. R. Crim. P. 32(b) (2000) (emphasis added).
The tasks of the probation officer under the Rule include
gathering information (e.g., the defendant’s “history and
characteristics”), expressing opinions (stating “the
classification of the offense and of the defendant . . . as the
probation officer believes to be applicable”), making
judgments (“explain[ing] . . . factors that may suggest a
different sentence . . . that would be more appropriate”),
reporting on the crime’s impact on the victim, mediating
disputes that arise as a result of the draft PSR, and
commenting on unresolved objections. The Rule demands
that some of these functions be carried out in a neutral
manner; for example, facts relating to victim impact must be
reported in “a nonargumentative style.” Fed. R. Crim. P.
32(b)(4)(D) (2000). However, by their nature, other duties
necessarily require the probation officer to stake out and
defend a position.
It has been suggested that when the probation officer’s
conclusion on a matter that affects the guideline range differs
from a position taken by the government or, as here, the
defendant, the probation officer thereby assumes the role of
an advocate. See United States v. Johnson, 935 F.2d 47, 49
(4th Cir. 1991). Indeed, the role of the probation officer has
changed substantially in the post-Sentencing Guideline era.

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No. 02-5546 United States v. Espalin 11
See Sharon M. Brunzel, The Probation Officer and the
Federal Sentencing Guidelines: Strange Philosophical
Bedfellows, 104 Yale L.J. 933, 945, 962 (Jan. 1994) (positing
that the pre-Guideline probation officer served as “the court’s
‘eyes and ears,’ a neutral information gatherer with loyalties
to no one but the court,” whereas the Sentencing Guidelines
have increased the probation officer’s “decision-making
responsibilities” directly relating to guideline range
calculations and have thrust the officer into “the business of
lawyering”). Decisions that predate the implementation of the
Sentencing Guidelines assume the absence of the probation
officer’s allegiance to one side or the other as a fundamental
premise that permits the acquisition and transmission of
information to the sentencing judge in a way that is removed
from the adversarial system yet is consistent with due process.
See, e.g., Williams v. New York, 337 U.S. 241, 249-50 (1949)
(holding that “modern” practice of acquiring sentencing
information through probation agents does not offend the
Confrontation Clause, and observing that “most of the
information now relied upon by judges to guide them in the
intelligent imposition of sentences would be unavailable if
information were restricted to that given in open court by
witnesses subject to cross-examination”); United States v.
Story, 716 F.2d 1088, 1090 (6th Cir. 1983) (holding that a
sentencing court may hold ex parte conferences with a
probation officer). Despite their new, guideline-imposed role,
however, the probation officers’ obligation to remain neutral
has not shifted. That does not mean, however, that probation
officers should not advance a position and provide a
dispassionate rendition of the facts in support of their
conclusion. Indeed, the obligations imposed on them by Rule
32 and the Sentencing Guidelines require at least that much.
Other Circuits that have considered the question have
endorsed the requirement that probation officers must remain
as unbiased operators under the Sentencing Guidelines,
unaligned with either side. See Johnson, 935 F.2d at 49-50
(holding that throughout the process of interviewing a
defendant, preparing a presentence report, and discussing the
12 United States v. Espalin No. 02-5546
report during a presentence conference with the court, a
probation officer should continue to be a neutral, information-
gathering agent of the court, not an agent of the prosecution);
United States v. Rogers, 921 F.2d 975, 980 (10th Cir. 1990)
(stating that the probation officer acts as an agent of the court
for the purpose of gathering and classifying information and
informing the court in the exercise of its sentencing
responsibility). That requirement ought not impair probation
officers’ effectiveness or compromise their independence.
See United States v. Woods, 907 F.2d 1540, 1543-44 (5th Cir.
1990) (rejecting the defendant’s claim on appeal that a
probation officer acted in a prosecutorial capacity because he
recommended a higher quantity of drugs than that to which
the prosecutor had stipulated, the court instead finding that
the probation officer’s action demonstrated his “independence
of the prosecution and his obligation to recommend what he
believes to be a correct sentence to the court”); United States
v. Belgard, 894 F.2d 1092, 1098-99 (9th Cir. 1990) (holding
(1) that the role of probation officers under the Sentencing
Reform Act in investigating offenses for sentencing purposes
did not violate separation of powers principles; (2) the
probation officer’s performance of her investigation and
recommendation functions did not violate due process,
despite the defendant’s contention that the probation officer
performed judicial decision-making functions that resulted in
a deprivation of his right to be heard; and (3) the probation
officer’s presentence report to the court did not bias the court
so that it would be unable to sit as a neutral fact finder and
render an impartial sentencing decision). Rather, the
neutrality requirement merely reaffirms the principle that the
probation officer has no fealty to either side, but remains
accountable to the court for accurately reporting the facts and
the legal conclusions that fairly flow from them in order to
assist the court in discharging its sentencing responsibilities.
See United States v. Jackson, 886 F.2d 838, 844 (7th Cir.
1989) (holding that, “[n]otwithstanding the reduced discretion
now afforded district judges under the Sentencing Guidelines,
the duty and responsibility for imposition of sentence has not
shifted from district judges to probation officers”).

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No. 02-5546 United States v. Espalin 13
The defendant cites United States v. Sifuentez, 30 F.3d 1047
(9th Cir. 1994), in support of his claim that the probation
officer acted improperly in this case. In that case, the
probation officer responded to the defendant’s argument that
he was entitled to a downward departure from the sentencing
guidelines by writing an addendum to the PSR, which stated:
Defendant’s count of conviction . . . reveals that
defendant possessed drugs while in prison. It is our
opinion that defendant’s possession of drugs in prison
jeopardized the safety and security of the institutional
staff and inmates . . . . Defense counsel also contends
that the mandatory sentence of 120 months for
[defendant’s] prior felony conviction is a factor strongly
supporting a downward departure. We disagree. This
sentence should have been a deterrence for [defendant]
preventing further criminal activity. However, this does
not appear to be the case as [defendant] continued to
engage in criminal drug activity.
Id. at 1048 (emphasis added). The defendant argued on
appeal that Rule 32 prohibited the probation officer from
making or advocating departure recommendations in the
presentence report. The court found that nothing in 18 U.S.C.
§ 3553(b) (authorizing sentencing departures), the Sentencing
Guidelines, or the Federal Rules of Criminal Procedure
explicitly prohibited departure recommendations in
presentence reports. Id. at 1049. “While 18 U.S.C. § 3553(a)
does require that such reports conform with Rule 32, Rule
32(c) permits, and even expects, that a probation officer will
make a variety of sentencing recommendations, including
those about departures.” Ibid. The court characterized the
language in the addendum as “strong” and “com[ing] close to
crossing the line into impermissible advocacy,” but found the
report “acceptable” since it was not “unfair to the defendant.”
Id. at 1049-50.
I suppose that there could be cases in which the probation
officer oversteps permissible limits by becoming personally
14 United States v. Espalin No. 02-5546
embroiled in a sentencing issue, just as there are cases in
which a judge’s impartiality could be questioned. In those
instances, the probation officer’s service to the court would
not be helpful, since there would be reason to doubt the
quality of the information coming to the court on which
sentencing decisions are based. When a probation officer
deliberately omits or mischaracterizes relevant facts, or
intentionally misstates the law, or has an interest in the
outcome of the case or some other conflict of interest, there
likely would be a basis to question the probation officer’s
objectivity. Similarly, if the probation officer excludes or
ignores competing arguments, he or she would not be doing
the job expected by the sentencing court. But even then, the
adversary system contains safeguards that protect the
defendant’s interest in bringing forth facts that give an
accurate picture to the sentencing judge. See Fed. R. Crim. P.
32(f)(1) (2002) (allowing the parties to “state in writing any
objections, including objections to material information,
sentencing guideline ranges, and policy statements contained
in or omitted from the report”); 32(i)(1)(C) (requiring the
sentencing court to “allow the parties’ attorneys to comment
on the probation officer’s determinations and other matters
relating to an appropriate sentence”).
A sentencing court is best served by objective, accurate
information from the probation officer. That information will
likely be detrimental to the position of one side or the other,
or might even contravene the parties’ stipulations. See, e.g.,
Woods, 907 F.2d at 1543-44 (where probation officer
recommended a drug quantity higher than the parties had
agreed to). Probation officers ought not be discouraged from
setting forth such facts. Moreover, making recommendations
on guideline scoring decisions or departure motions, and
taking a position on unresolved objections, is not only
allowable, it is required by Rule 32. Ordinarily, the
recommendations that are the most useful to the district judge
are those that are based on the specific text of the Sentencing
Guidelines Manual, including the commentary, and are tied
to the facts of the case as set forth in the body of the PSR.

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No. 02-5546 United States v. Espalin 15
Such recommendations may be influential with the court, but
not unreasonably so, just as the recommendation of a
magistrate judge under 28 U.S.C. § 636(b)(2)(B) properly
may be considered and even adopted by an Article III judge.
In such circumstances, the judge conducts a de novo review
of the facts and makes an independent finding, informed by
the probation officer’s reported facts and stated opinions,
which may be challenged by the parties. Cf. Fed. R. Crim. P.
32(i) (2002). Similarly, this court has observed that “[t]he
district court must ordinarily rely in considerable measure
upon a presentence report, but it is the district court that must
make the hard decisions in cases such as this with a wide
range of sentencing issues and legal determinations to be
made.” United States v. Tocco, 200 F.3d 401, 436 (6th Cir.
2000).
In this case, the probation officer informed the court of the
possibility of an upward departure, and recommended against
a downward departure under USSG § 5K2.13. I understand
how this language might sound like advocacy to the
defendant, against whom the recommendation went. It is an
accusation often leveled at a decision maker by the losing
side. Indeed, the probation officer emphasized the facts that
were more favorable to the government, but she did so
accurately. When the recommendation is based fairly on the
facts and dispassionately traces its way through the law to a
sensible conclusion, the requirement of neutrality has been
met. I agree that the probation officer’s statements did not
offend the requirement of neutrality in the context of former
Rule 32(c) (now Rule 32(d)).

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