United States of America v. Edward Carter

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0187P (6th Cir.)
File Name: 04a0187p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD CARTER,
Defendant-Appellant.
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No. 02-1511
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 00-80692—Victoria A. Roberts, District Judge.
Argued: September 19, 2003
Decided and Filed: June 22, 2004
Before: BOGGS, Chief Judge; and NORRIS and CLAY,
Circuit Judges.
_________________
COUNSEL
ARGUED: Suzanna Kostovski, Detroit, Michigan, for
Appellant. Daniel L. Lemisch, ASSISTANT UNITED
STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Suzanna Kostovski, Detroit, Michigan, for
Appellant. Daniel L. Lemisch, ASSISTANT UNITED
2 United States v. Carter No. 02-1511
STATES ATTORNEY, Detroit, Michigan, for Appellee.
Edward Carter, Pekin, Illinois, pro se.
BOGGS, C. J., delivered the opinion of the court, in which
NORRIS, J., joined. CLAY, J. (pp. 22-30), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
BOGGS, Chief Judge. Defendant, Edward Carter, a
Michigan prisoner represented by counsel, appeals an
April 12, 2002 judgment sentencing Defendant to seventy-
seven months in prison for one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g).
Before the district court, Defendant pleaded guilty to the
offense but conditioned his plea upon the right to appeal the
district court’s denial of his Motion to Suppress and the
district court’s denial of his two Motions to Reopen the
Suppression Hearing. For the reasons set forth below, we
affirm the district court’s judgment in its entirety.
BACKGROUND
The testimony of two Detroit police officers, William
Zeolla and Kevin Reed, describes the following account of
Defendant’s arrest. On August 4, 2000, at approximately
1:23 a.m., the two testifying officers sat in a marked scout car
near the intersection of Pembroke and Shaftsbury streets in
Detroit, Michigan. Both officers observed a van traveling
eastbound on Pembroke. As the van turned right on
Shaftsbury from Pembroke, it disregarded a stop sign. The
police activated their vehicle’s overhead lights and attempted
to stop the van.

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No. 02-1511 United States v. Carter 3
1It was later discovered that the van had a temp orary tag, though it
was not certain whether the tag was expired.
2This individual is also referred to as Robert E lsberry, at times.
The van took approximately thirty seconds to stop. Neither
officer could see a license plate on the van as it pulled over.1
While the van was pulling over, the officers observed
occupants of the van making movements. Officer Reed
approached the front passenger and observed the shoulder
strap of a bullet-proof vest protruding from the passenger’s
shirt. In fact, the front passenger wore a vest identical to
those worn by Detroit police officers, so that the strap was
immediately apparent to Reed as the strap of a bullet-proof
vest. When Reed asked him if he was wearing body armor,
the passenger stated that he was.
Officer Reed ordered the front passenger, later identified as
Marcellas Dunbar, to step out of the car. As Dunbar exited
the passenger side of the van, Reed saw him make a tossing
motion. Reed heard a distinct “thud” from the front passenger
area after Dunbar made the tossing motion. Officer Zeolla
observed a handgun drop to the floor of the vehicle as the
tossing motion was made. According to Officer Reed’s
account, Dunbar was then “combative,” using vulgar
language and trying to pull away from the officer. Officer
Reed handcuffed Dunbar.
Officer Zeolla then ordered the driver, later identified as
Rob McGruder,2 out of the van. Upon seeing a gun drop to
the floor as the front passenger exited the car, Officer Zeolla
handcuffed McGruder.
Officer Zeolla then removed Defendant, Edward Carter,
from the van, where he had been seated as the rear passenger.
Defendant wore a bullet-proof jacket. As Defendant exited
the vehicle, Officer Zeolla believed that he saw that
Defendant had been sitting on a handgun. When he pleaded
4 United States v. Carter No. 02-1511
guilty, Defendant admitted to possessing a gun in the car,
though he stated that he was not sitting on it but rather it was
located near him in the vehicle.
Among the other items that the police located in the vehicle
was a police scanner on the rear floor in the area where
Defendant sat. The scanner was on, tuned into the Detroit
Police Department frequency. In addition to the two
handguns and the scanner, the officers found gloves, two
masks, and two walkie-talkies.
On October 5, 2000, a federal grand jury indicted
Defendant on one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). Defendant filed
a Motion to Suppress in an attempt to exclude the evidence
found in the van on grounds that the officers lacked probable
cause to stop the vehicle. The district court ordered a
suppression hearing, which was held before a magistrate
judge on January 30, 2001. Although McGruder and Dunbar
testified at the hearing that they specifically remembered the
van stopping at the stop sign at Pembroke and Shaftsbury, this
was contrary to the testimony of the two officers. On
March 12, 2001, in his Report and Recommendation, the
magistrate judge found that McGruder and Dunbar were not
credible and recommended denying Defendant’s Motion to
Suppress. Defendant filed timely objections to the magistrate
judge’s Report and Recommendation, but the district court
adopted the report’s findings and denied Defendant’s Motion
to Suppress.
Defendant filed a Motion to Reopen the Suppression
Hearing, arguing that he should have the opportunity to ask
additional questions of Special Agent Donna Averill of the
ATF, who testified for the government at the suppression
hearing. Averill had submitted an affidavit in support of the
federal complaint based on information she obtained from the
Detroit Police Department. According to Defendant’s
motion, Averill made a statement in her affidavit that
conflicted with the testimony of Reed and Zeolla – Averill

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No. 02-1511 United States v. Carter 5
3Defendant used various attorneys at different stages and also chose
to submit a “Pro Se Appellant Supplem ental Brief.” De fendant’s pro se
brief fails to raise issues not co vered by his co unsel’s brief.
had listed the location of the stop sign as being Grandville
and Shaftsbury, not the location of the stop sign that was
reported by the officers (Shaftsbury and Pembroke). The
district court denied Defendant’s Motion to Reopen the
Suppression Hearing but granted Defendant’s Motion to
Suppress certain statements that he made, due to violations of
his Sixth Amendment rights.
Defendant filed a second Motion to Reopen the
Suppression Hearing.3 Defendant based this motion on the
failure of prior counsel to call Detroit Police Sargent Herbert
Maxwell as a witness. Maxwell handled the case when Reed
and Zeolla returned to the Detroit Police Department.
Although he was not present at the scene, Maxwell followed
Detroit Police Department procedure and prepared an
“Investigator’s Report” of the incident. Maxwell indicated
that Defendant traveled in a van with no license plate, but his
report did not mention that the van ran a stop sign. In their
written reports, Reed and Zeolla each indicated that the van
failed to stop at the stop sign. On November 8, 2001, the
district court denied Defendant’s second Motion to Reopen
the Suppression Hearing.
On December 3, 2001, Defendant pleaded guilty to the
offense, conditioned upon the right to appeal the district
court’s denial of his Motion to Suppress evidence found in the
van and the court’s denial of his two Motions to Reopen the
Suppression Hearing. The United States Probation
Department found that Defendant qualified as a “career
offender” under United States Sentencing Guidelines Manual
(“U.S.S.G.”) § 4B1.1. On April 11, 2001, the district court
sentenced Defendant under the Sentencing Guidelines’
“career offender” provision to seventy-seven months in prison
followed by a three-year term of supervised release.
6 United States v. Carter No. 02-1511
On April 17, 2002, Defendant filed a timely notice of
appeal.
DISCUSSION
Defendant raises three issues for review on appeal: the
admissibility of the gun as evidence; the propriety of the
district court’s denial of his two Motions to Reopen the
Suppression Hearing; and the compliance of the sentencing
with applicable guidelines. We take these issues in order.
I
Defendant argues that the gun belonging to him and found
in the van by the police was inadmissible as evidence, on the
grounds that there was not probable cause to stop the vehicle.
Officers may stop a vehicle where there is probable cause
to believe that a traffic infraction was committed. Whren v.
United States, 517 U.S. 806, 810 (1996) (“As a general
matter, the decision to stop an automobile is reasonable where
the police have probable cause to believe that a traffic
violation has occurred.”) (citations omitted).
A district court’s probable cause determination potentially
involves two steps, each subject to a different standard of
review. The first step is a determination of historical facts.
Ornelas v. United States, 517 U.S. 690, 696-97 (1996). This
court reviews a district court’s factual findings relating to
probable cause for clear error, viewing the evidence in the
light most favorable to the government. United States v.
Buchanan, 72 F.3d 1217, 1223 (6th Cir. 1995). The second
step in the analysis is the application of the law to the facts,
a mixed question of law and fact that this Court reviews de
novo. Ornelas, 517 U.S. at 696-97.
The district court referred the suppression issue to a
magistrate judge for a hearing. The magistrate judge’s Report
and Recommendation recounts the testimony of Officers

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No. 02-1511 United States v. Carter 7
Zeolla and Reed, stating that the van did not come to a
complete stop at the stop sign at Pembroke and Shaftsbury.
The report describes the testimony of McGruder and Dunbar,
the two other occupants of the vehicle besides Defendant,
stating that the vehicle did come to a full stop at the
intersection. The document observes that the government
attempted to impeach McGruder’s testimony by calling
Special Agent Averill to testify as to an allegedly prior
inconsistent statement made to investigators. McGruder,
when interviewed on January 5, 2001, had allegedly stated
that he did not see a stop sign. Defendant had countered this
allegation with testimony from McGruder and from a federal
investigator, indicating that McGruder’s statement made
about not seeing a stop sign referred to the intersection of
Grandville and Pembroke (where the officers were located),
not to the intersection at Pembroke and Shaftsbury.
The magistrate judge, conceding that “[t]his case is
difficult” because the testimony of the officers and that of
McGruder were both “definite and clear in their differing
versions” of what had happened, ruled in favor of the
government on the basis of credibility determinations. The
magistrate judge reasoned:
Mr. McGruder, the driver, who was not familiar with the
area . . . testified that they saw the police pull up behind
them as they passed Grandville. With all of the burglar
paraphernalia in the van, it is likely that there was a
flurry of activity to hide the items and this would be
consistent with the officers’ testimony that they saw
movement of the occupants in the vehicle before it
actually stopped. Mr. McGruder’s attention may have
been distracted as he came to the unfamiliar
Pembroke/Shaftsbury intersection which, while it had a
stop sign, was still somewhat of a rounded turn . . . . It
is quite possible that the van did not come to a complete
stop at the corner.
8 United States v. Carter No. 02-1511
The magistrate judge also found it “suspicious” that, in his
interview with Averill, McGruder had become “so confused
or equivocal” about having stopped at the intersection of
Grandville and Pembroke; the magistrate judge stated: “It is
quite possible that McGruder never actually thought about
stopping at Grandville and was going to claim that there was
no visible stop sign at Shaftsbury.” Finally, the magistrate
judge opined:
It is . . . very hard for the Court to believe that the two
sworn officers would perjure themselves, and put their
reputations and careers in jeopardy, for what must be
seen as a relatively minor case with no victim. . . . Mr.
McGruder, on the other hand, has a felony conviction for
fleeing and eluding, and while positively recalling that he
fully stopped at the corner, interestingly denied seeing
any guns, masks, gloves, radios or scanner in the van . . .;
the testimony of the front seat passenger, Mr. Dunbar,
regarding the circumstances of the stop was so confusing
and contradictory as to be essentially worthless . . . .
In an order adopting the magistrate judge’s credibility
determinations, the district court denied Defendant’s Motion
to Suppress.
The district court thus found that, as a matter of historical
fact, the van had not stopped at the intersection of Pembroke
and Shaftsbury. None of the evidence relied upon by the
magistrate judge – and then the district court – was
inadmissible, with the possible exception of McGruder’s
felony conviction for fleeing and eluding, which was not
admissible unless the conviction was “punishable by . . .
imprisonment in excess of one year under the law under
which the witness was convicted,” and the conviction was not
more than ten years old. Fed. R. Evid. 609(a)(1) (also making
the evidence subject to Rule 403), 609(b); see also Rule

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No. 02-1511 United States v. Carter 9
4Fleeing or eluding would not fall und er the ambit of Rule 609(a)(2),
which makes admissible evidence of a conviction “if it involved
dishonesty or false statement, regardless of the punishment.” See also
609(b) (the conviction must not have been more than ten years old).
404(a)(3).4 Assuming, arguendo, that the evidence of
McGruder’s prior convictions was inadmissible, then this was
the only error in the ruling – as such, there was still ample
admissible evidence to support the finding.
Viewed in the light most favorable to the government, the
officers were credible, in stating that the van did not stop at
the stop sign, and the statements of McGruder and Dunbar
were not credible. The magistrate judge raised numerous
reasons for his credibility findings, only one of which – the
reference to prior convictions of McGruder – might be clearly
erroneous. There are sufficient reasons, aside from the prior
convictions, for the credibility determinations. The district
court’s determination of historical fact, per the Report and
Recommendation of the magistrate judge, withstands review
for clear error.
As to the second stage of the probable cause analysis, upon
de novo review there is no doubt the district court properly
applied the law to the facts – i.e., if the van did not stop at the
stop sign, then it is indisputable that there was probable cause
to believe that the van had committed a traffic infraction.
II
Defendant contests the district court’s denial of its two
Motions to Reopen the Suppression Hearing. Defendant’s
first motion was to reopen the hearing to allow him to elicit
further testimony from Special Agent Donna Averill. Averill
had testified at the suppression hearing. On cross-
examination, however, Defendant had not asked Averill about
the statement in her affidavit that listed the location of the
stop sign in question at Grandville and Shaftsbury, which
conflicted with the location reported by the officers
10 United States v. Carter No. 02-1511
(Shaftsbury and Pembroke). Defendant’s second motion was
to reopen the suppression hearing to allow Detroit Police
Sargent Herbert Maxwell to testify. Defendant had failed to
call Maxwell as a witness at the hearing, even though
Maxwell “Investigator’s Report” indicated that Defendant
traveled in a van with no license plate, but did not mention
that the van ran a stop sign.
We review a trial court’s ruling on a motion to reopen a
suppression hearing for an abuse of discretion. United States
v. Lawrence, 308 F.3d 623, 627 (6th Cir. 2002); United States
v. Alexander, 948 F.2d 1002, 1003 (6th Cir. 1991).
A ruling on whether to reopen a suppression hearing is
governed by principles of jurisprudence that relate to
reopening proceedings, generally. In reversing a district
court’s decision to reopen a suppression hearing, the Third
Circuit stated, “‘courts should be extremely reluctant to grant
reopenings.’” United States v. Kithcart, 218 F.3d 213, 219-20
(3d Cir. 2000) (citing United States v. Blankenship, 775 F.2d
735, 740 (6th Cir. 1985)). The case quoted, Blankenship,
involved a motion to reopen a case-in-chief. The principles
that governed the ruling on the motion to reopen a case-in-
chief in Blankenship were cited as applicable to a motion to
reopen a suppression hearing in Kithcart. The Third Circuit
stated:
When faced with a motion to reopen, the district court's
primary focus should be on whether the party opposing
reopening would be prejudiced if reopening is permitted.
[Blankenship, 775 F.2d at 740]; see also 28 Charles A.
Wright & Victor J. Gold, Federal Practice And Procedure
§ 6164 (1993). However, “the trial judge must consider
a number of factors.” Blankenship, 775 F.2d at 741
(emphasis added). Furthermore, “[t]he party moving to
reopen should provide a reasonable explanation for
failure to present the evidence [initially].” Id. In order to
properly exercise its discretion the district court must
evaluate that explanation and determine if it is both

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No. 02-1511 United States v. Carter 11
reasonable, and adequate to explain why the [moving
party] initially failed to introduce evidence that may have
been essential to meeting its burden of proof.
218 F.3d at 220.
Defendant presents ineffective assistance of counsel as the
reason for the failure to introduce the testimony from Averill
as to the affidavit and for the failure to call Maxwell as a
witness. Defendant no longer retains the counsel that he had
at the suppression hearing. Defendant claims to have alerted
the prior counsel to the location of the stop sign listed in the
Averill affidavit in time for the prior counsel to have raised
the issue. Defendant claims that the Averill affidavit’s listing
of a different location for the missed stop sign was important
because the magistrate judge’s finding of probable cause
relied on assessments of the credibility of the officers.
Nevertheless, Defendant failed to raise the issue of
ineffective assistance of counsel before the district court. In
the first motion to reopen the hearing – requesting that
Defendant be allowed to elicit testimony as to the Averill
affidavit – Defendant did not raise the issue of ineffective
counsel. In the second motion – requesting that Defendant be
allowed to call Maxwell as a witness – Defendant refers in
passing to the change of counsel, but makes no argument as
to ineffective counsel. Nor was any other reason given in
either motion as to why the requested evidence had not been
presented at the suppression hearing. As stated in Kithcart,
“‘[t]he party moving to reopen should provide a reasonable
explanation for failure to present the evidence [initially].’”
218 F.3d at 220 (quoting Blankenship, 775 F.2d at 741).
Defendant presented no explanation before the district court
about why he failed to present the evidence initially. Thus,
the district court did not abuse its discretion by denying the
motions to reopen the suppression hearing.
12 United States v. Carter No. 02-1511
III
Defendant appeals his sentencing. Defendant received a
sentence of seventy-seven months in prison followed by a
three-year term of supervised release, having been sentenced
as a “career offender” under U.S.S.G. § 4B1.1, which states:
A defendant is a career offender if (1) the defendant was
at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the
instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions
of either a crime of violence or a controlled substance
offense.
U.S.S.G. § 4B1.1(a). The dispute in the present case arises
over the third provision, stating that for a defendant to be a
“career offender,” the defendant must have a minimum “two
prior felony convictions” of a crime of violence or a
controlled substance offense. The applicable term is defined
as follows:
The term “two prior felony convictions” means (1) the
defendant committed the instant offense of conviction
subsequent to sustaining at least two felony convictions
of either a crime of violence or a controlled substance
offense (i.e., two felony convictions of a crime of
violence, two felony convictions of a controlled
substance offense, or one felony conviction of a crime of
violence and one felony conviction of a controlled
substance offense), and (2) the sentences for at least two
of the aforementioned felony convictions are counted
separately under the provisions of § 4A1.1(a), (b), or (c).
Id. § 4B1.2(c). For convictions of a defendant after he or she
reached the age of eighteen, the guidelines count “any prior
sentence of imprisonment exceeding one year and one month,
whenever imposed, that resulted in the defendant being

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No. 02-1511 United States v. Carter 13
incarcerated during any part of [the] fifteen-year period . . .
within fifteen years of the defendant’s commencement of the
instant offense.” Id. § 4A1.2(e)(1); see also id. § 4A1.2(e)(4)
(imposing different rules for sentences imposed prior to the
defendant reaching the age of eighteen).
Whether sentences are counted as pertaining to separate
convictions under U.S.S.G. § 4B1.2(c)(2) depends on whether
they are “related” or “unrelated.” Id. § 4A1.2(a)(2) (“Prior
sentences imposed in unrelated cases are to be counted
separately. Prior sentences imposed in related cases are to be
treated as one sentence for purposes of § 4A1.1(a), (b), and
(c) . . . .”).
Defendant contests his sentence on two grounds. Before
examining each of these arguments, we should set forth the
pertinent facts. As a nineteen-year-old, Defendant was
convicted in two legal proceedings, arising from two separate
incidents. On March 2, 1981, Defendant was arrested for
armed robbery and felony firearm, after having used a
handgun in robbing an individual of a purse, money, jewelry,
and a jacket on January 18, 1981. On March 4, 1981,
Defendant was arrested, again for armed robbery and felony
firearm, based on an incident where Defendant and another
individual, while armed with handguns, robbed two other
individuals of various items (including a car, a briefcase,
checks, a purse, money, credit cards, and identification cards)
on January 7, 1981. On June 7, 1984, Defendant was released
on parole. On September 12, 1986, Defendant was arrested
by Detroit police and held in custody for attempted
possession with intent to deliver. On October 17, 1986,
Defendant was returned to custody on account of the parole
violation and two new convictions for unlawfully driving
away an automobile and for possession with intent to deliver.
On November 14, 1989, Defendant was again released on
parole. On March 8, 1990, Defendant was returned to
custody, based on a technical violation of parole. On April
13, 1990, Defendant was again released on parole, and was
subsequently discharged on October 12, 1990.
14 United States v. Carter No. 02-1511
Based on these facts, Defendant raised two objections to his
sentence. First, he challenges whether either of his two
felony sentences from 1981 extended into the fifteen years
prior to his commencement of the present offense. Second,
he contends that the 1981 convictions were consolidated in
sentencing and thus “related.” Defendant raised these two
objections in the sentencing proceeding before the district
court. The Presentence Investigation Report (“PSR”) rejected
both objections through brief written responses that were
submitted in the Addendum to the PSR.
At the sentencing hearing, the district court dismissed all of
Defendant’s objections without explanation. (“I agree with
the conclusions reached by the Probation Department and I
believe that none of the objections raised are with merit.”).
Defendant made at least eight objections to the PSR,
including numerous objections that have not been renewed on
appeal. Yet the district judge adopted the PSR’s arguments
against each and every objection, without offering any
explanation.
The district court’s failure to offer explanations was a clear
violation of Fed. R. Crim. P. 32(i)(3)(B). This Rule states:
At sentencing, the court . . . must – for any disputed portion
of the presentence report or other controverted matter – rule
on the dispute or determine that a ruling is unnecessary
either because the matter will not affect sentencing, or
because the court will not consider the matter in sentencing.
This court has made it clear on several occasions that the
district courts must be in “literal compliance” with the
requirements of Rule 32. See United States v. Corrado, 227
F.3d 528, 540-41 (6th Cir. 2000) (explaining that “literal
compliance” requires more than “summarily adopt[ing] the
findings of the presentence report or simply declar[ing] that
the enhancement in question was supported by a
preponderance of the evidence”); see also United States v.
Osborne, 291 F.3d 908, 912 (6th Cir. 2002) (vacating

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No. 02-1511 United States v. Carter 15
5Rule 32(c)(1) is an older version of the current Rule 32(i)(3)(B).
sentence where district court did “nothing more than state
summarily that [it] was accepting the sentencing range as set
forth in the presentence report”).
Our finding that the district court violated Rule 32(i)(3)(B)
is not, however, the end of the analysis. This court must also
determine whether the district court’s error was harmless. See
United States v. Darwich, 337 F.3d 645, 666 (6th Cir. 2003)
(applying harmless error analysis to Rule 32(i)(3)(B)); United
States v. Parrott, 148 F.3d 629, 633-34 (6th Cir. 1998)
(holding that even though the “[d]istrict [c]ourt did not fully
comply with Rule 32(c)(1) when it simply adopted the
[presentence] report,” the “error in this regard was
harmless”).5 See also Fed. R. Crim. P. 52(a) (“Any error,
defect, irregularity, or variance that does not affect substantial
rights must be disregarded.”).
For reasons explained below, both of Carter’s objections
clearly fail, and so the district court’s failure to provide
specific determinations was harmless. Accordingly,
remanding the sentence would only be a waste of judicial
resources. Our conclusion, however, should in no way be
seen as undermining the requirements of Rule 32. District
courts are warned that they must continue to comply literally
with Rule 32. We stress that, given the specific
circumstances in this case, the error was harmless because
Carter’s arguments cannot possibly afford him relief.
We now turn to each of Carter’s two objections.
A. Whether Defendant was Incarcerated for a Felony
During the Fifteen Years Prior to the Present Offense
Pursuant to U.S.S.G. § 4A1.2(e)(1), Defendant contests
having been incarcerated during the fifteen years prior to the
present offense. The present offense was committed on
16 United States v. Carter No. 02-1511
August 4, 2000. Defendant had been incarcerated for parole
violations from October 17, 1986 to November 14, 1989. All
of the original crimes (and the subsequent offenses leading to
the revocation of the parole) were felonies. In accordance
with U.S.S.G. § 4A1.2(e)(1), then, Defendant was clearly
incarcerated for a felony after 1985, and thus during part of
the fifteen-year period prior to his commencement of the
instant offense.
Defendant argues, based on Morrissey v. Brewer, 408 U.S.
471 (1972), that due process entitled him to a parole
revocation hearing – which he never received. Under
Morrissey, due process requires that “the finding of a parole
violation be based on verified facts and that the exercise of
discretion be informed by an accurate knowledge of the
parolee’s behavior.” Id. at 484. However, Morrissey was a
habeas proceeding. Id. at 474. By contrast, the present due
process challenge is made at the sentencing phase and is thus
impermissible. In United States v. Bonds, 48 F.3d 184, 186
(6th Cir. 1995), this court stated:
The United States argues that this court’s decision in
United States v. McGlocklin, which allowed . . . a
collateral attack at sentencing, has been superseded by
the decision of the United States Supreme Court in
Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732,
128 L.Ed.2d 517 (1994). In Custis, the Supreme Court
held that unless there has been a previous ruling that a
conviction has been ruled constitutionally invalid, or
unless the conviction has been obtained when counsel
has not been available or provided, in violation of
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799 (1963), a collateral attack on the conviction
is not allowed at sentencing.
We agree with the United States that McGlocklin has
been superseded. As this court stated in United States v.
Smith, 36 F.3d 490, 492 (6th Cir. 1994):

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No. 02-1511 United States v. Carter 17
Custis has now been decided and it holds that
neither § 924(e) nor the Constitution permit a
defendant to “collaterally attack the validity of
previous state convictions that are used to enhance
his sentence under the ACCA . . . with the sole
exception of convictions obtained in violation of the
right to counsel.”
(citation omitted). In the present case, defendant is
alleging that his Boykin rights were violated, not his
Gideon right to counsel. Therefore, according to Custis,
defendant cannot collaterally attack the validity of his
previous state conviction for robbery on the ground that
the guilty plea was unconstitutional, and the 1976 state
conviction for robbery was therefore properly used to
enhance his sentence.
In Bonds, the due process challenge at sentencing was to a
conviction. That the challenge is to a parole revocation in the
present case does nothing to distinguish it from Bonds.
Defendant’s argument that he was denied due process in not
receiving a parole revocation hearing may not be used as a
basis for challenging his sentencing. As a matter of law,
Defendant’s due process challenge could not possibly serve
as a basis for altering the sentence imposed by the district
court.
B. Whether the Past Offenses were “Related”
Defendant contests the determination that he had “two prior
felony convictions,” which made him a career offender under
U.S.S.G. § 4B1.1(a). Sentences are counted as pertaining to
separate convictions, under U.S.S.G. § 4B1.2(c)(2), if they are
“unrelated.” Id. § 4A1.2(a)(2) (“Prior sentences imposed in
unrelated cases are to be counted separately. Prior sentences
imposed in related cases are to be treated as one sentence for
purposes of § 4A1.1(a), (b), and (c) . . . .”). “Related”
sentences are defined as follows:
18 United States v. Carter No. 02-1511
6In full, the Pro bation De partm ent’s resp onse to Defendant’s
objection to the treatment of the two prior offenses as unrelated stated:
Even though Defendant was sentenced on the same day for both
the armed robbery offenses, the Probation Department does not
have any proof to verify that there was any formal order of
consolidation filed with the court. The offenses explained in
Paragraphs 29 and 32 were separated by an intervening arrest,
and they did not occur on the same occasion and were not part
of a single common scheme or plan. Therefore they were not
related. Furthermore, even if the two armed robbery offenses
are considered consolidated for guidelines purpo ses, the base
offense level of 24 is still applicable for the armed robb ery
offense(s) and the Possession With Intent to Deliver. Therefore,
the repo rt will remain as written, and this m atter will be left to
the Court to decide.
Prior sentences are not considered related if they were for
offenses that were separated by an intervening arrest (i.e.,
the defendant is arrested for the first offense prior to
committing the second offense). Otherwise, prior
sentences are considered related if they resulted from
offenses that (A) occurred on the same occasion,
(B) were part of a single common scheme or plan, or
(C) were consolidated for trial or sentencing . . . .
Id. § 4A1.2, Application Note 3. As stated earlier, the only
possible objection (which Carter did raise) was that these
offenses were consolidated for sentencing.
In the sentencing proceeding, the PSR rejected this
objection, based on three alternative arguments, each of
which would independently defeat Defendant’s claim: the
PSR argued that (1) there was an intervening arrest, making
the offenses unrelated under U.S.S.G. § 4A1.2, Application
Note 3; (2) there was no formal consolidation order and thus
the offenses did not meet the criterion for consolidation in
sentencing (and the offenses did not otherwise meet the
criteria for relatedness under U.S.S.G. § 4A1.2, Application
Note 3); and (3) the issue is moot.6 The district judge

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No. 02-1511 United States v. Carter 19
adopted the PSR’s conclusion without explanation. (“I agree
with the conclusions reached by the Probation Department
and I believe that none of the objections raised are with
merit”). Any one of the three grounds raised in the PSR
would have been dispositive. Because the district court
denied Defendant’s objections without explanation, we cannot
know whether the district court relied on only one of the
PSR’s arguments (and if so, which one), or whether the
district court relied on two (and, again, if so, which two), or
whether the district court accepted all three.
Indeed, because there was no intervening arrest, it is
possible that the district court made a mistake if it relied
solely on the first argument in dismissing the objection.
However, even assuming the court did rely on this argument,
its error was harmless given that Carter’s argument clearly
fails for other reasons. United States v. Allen, 106 F.3d 695,
700 n.4 (6th Cir. 1997) (“[W]e may affirm on any grounds
supported by the record, even though different from the
grounds relied on by the district court.”).
First, this court’s recent decision in United States v. Horn,
355 F.3d 610 (6th Cir. 2004), makes it clear that Carter’s
prior convictions could not possibly have been consolidated
for purposes of § 4A1.2. Horn states that we “must review
deferentially, that is, for clear error, the entirety of the district
court's determination that Horn's prior robbery convictions
were not related.” Id. at 613. Even assuming that the district
court clearly erred, Horn goes on to explain that “cases are
not consolidated when offenses proceed to sentencing under
separate docket numbers, cases are not factually related, and
there was no order of consolidation.” Id. at 614. Carter’s two
convictions proceeded under different docket numbers,
resulted from unrelated crimes separated by eleven days, and
lacked an order of consolidation.
In Horn, we declined to find that the convictions were
consolidated even though the defendant:
20 United States v. Carter No. 02-1511
was arrested and charged with the robberies at the same
time; . . . made an initial appearance as to both offenses at
the same time; the cases were set for trial on the same date;
the same counsel represented defendant as to both offenses;
a guilty plea was entered for each offense on the same day;
and defendant was sentenced for both offenses on the same
day with sentences to run concurrently.
Id. at 614. Horn presented a more compelling case for
consolidation than Carter does because the defendant in Horn
“was arrested and charged with the robberies at the same
time.” Id. at 614. Carter was not. He was arrested on
March 2, 1981 for one of his armed robberies. Two days
later, and presumably while in custody, he was arrested for
the second robbery. There is simply no legal basis to support
Carter’s claim of consolidation.
But even assuming, contrary to fact, that the 1981
convictions were consolidated (and thus counted as one,
rather than two, prior convictions), the issue is moot because
Carter’s 1986 conviction (attempted possession with intent to
deliver), when combined with the 1981 conviction, would be
sufficient to justify the sentencing enhancement. In the
objections to the PSR, Carter’s attorney explicitly conceded
that the 1986 conviction would qualify as a “prior felony
conviction” involving a controlled substance. She wrote:
[N]either of the 1981 convictions for armed robbery qualify
Defendant for an enhancement. The only conviction that
qualifies is described in paragraph 36 [i.e., the 1986
possession with intent conviction], which places Defendant
at the base level of 20. The offense referenced in paragraph
41 [simple possession] does not qualify as a prior
controlled substance conviction since it was simple
possession and did not involve the intent to manufacture,
import, export, distribute, or dispense.
The clear statement is that the 1986 conviction (in
paragraph 36) did qualify as a prior controlled substance

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No. 02-1511 United States v. Carter 21
conviction. Therefore, even if the 1981 convictions were
related, that single prior felony conviction must be combined
with the 1986 conviction. Combining these two convictions
makes it clear that Carter had two prior felony convictions
within the relevant time period, which makes the
consolidation issue moot.
Carter’s arguments cannot possibly succeed. The district
court’s error was thus harmless, and remand would only be a
waste of judicial resources.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of
the district court as to Carter’s conviction and sentencing.
22 United States v. Carter No. 02-1511
1None of the other objections are renewed on app eal. Thus, the case
should be remanded but only for a ruling on the issue presented before
this Court–the question of whether there were two prior related felony
convictions.
_______________
DISSENT
_______________
CLAY, Circuit Judge, dissenting. On appeal, Defendant
renews his objection, made originally at sentencing, to the
Probation Department’s assessment that Defendant had two
prior unrelated felony convictions. Pursuant to Federal Rule
of Criminal Procedure 32, the district court was required to
rule on this matter, but the district court failed to comply with
this rule. As a result, the case is required to be remanded for
a ruling by the district court on Defendant’s objection.
At sentencing, Defendant objected to the Probation
Department’s finding that there were two prior unrelated
felony convictions. Defendant argued that two prior felony
convictions for offenses committed in January 1981 were
consolidated for sentencing and thus were related under
U.S.S.G. § 4A1.2, Application Note 3(C). The district court
denied the objection, along with seven other objections,1
without ever addressing any of the objections individually.
The district court’s entire consideration of all eight objections
consisted of a single statement summarily adopting the
presentence report: “. . . I agree with the conclusions reached
by the Probation Department and I believe that none of the
objections raised are with merit . . . .” (J.A. at 316.)
The district court’s failure to address Defendant’s
objections violated Federal Rule of Criminal Procedure 32,
which states,
At sentencing, the court . . . must–for any disputed
portion of the presentence report or other controverted

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No. 02-1511 United States v. Carter 23
matter–rule on the dispute or determine that a ruling is
unnecessary either because the matter will not affect
sentencing, or because the court will not consider the
matter in sentencing.
Fed. R. Crim. P. 32(i)(3)(B). In requiring the district court to
“rule” on all disputed matters, Rule 32 does not define what
is required by the term “rule”–Rule 32 never specifies
precisely what level of depth or explanation is required from
the district court. Thus, it is conceivable that in certain cases
there might be uncertainty as to whether a district court’s
terse explanation for denying an objection would satisfy Rule
32.
However, such theoretical questions regarding the level of
depth needed to constitute a ruling are unnecessary for the
purposes of deciding the present case. This Court has held
that a district court’s blanket reliance on the presentence
report–as occurred in the present case–does not constitute a
“ruling.” United States v. Darwich, 337 F.3d 645, 667 (6th
Cir. 2003) (“exclusive reliance on the PSR when a matter is
in dispute cannot be considered a ruling.”). See also United
States v. Tarwater, 308 F.3d 494, 518 (6th Cir. 2002)
(“Because the purpose of the rule is to ensure that sentencing
is based on reliable facts found by the court itself after
deliberation, a court may not merely summarily adopt the
factual findings in the presentence report or simply declare
that the facts are supported by a preponderance of the
evidence. United States v. Corrado, 227 F.3d 528, 540 (6th
Cir. 2000); United States v. Tackett, 113 F.3d 603, 613 (6th
Cir. 1997).”). Indisputably, the district court violated Rule
32, in the present case.
Established precedent in this Circuit makes clear that a
remand is required where the district court has violated Rule
32 by relying solely on the presentence report. In United
States v. Corrado, 227 F.3d 528 (6th Cir. 2000), and
predecessor cases cited in Corrado, the district court had
24 United States v. Carter No. 02-1511
2This provision fro m the former Rule 32(c)(1) is now found in Rule
32(i)(3). See, e.g., United States v. Montgo mery, 2003 U.S. App. LEX IS
21950, at *2, *2 n.1 (10th Cir. Oct. 27, 2003) (“Mo ntgomery ap peals,
arguing that the trial judge should have disqualified himself, erred by
departing upward, and erred by failing to comply with Federal Rule of
Criminal Procedure 32(i)(3). . . . Formerly this provision was contained
in Fed. R. Crim. P. 32(c).”).
relied solely on the presentence report; this Court remanded,
requiring “literal compliance” with Rule 32:
The Federal Rules of Criminal Procedure provide that,
for each sentencing matter controverted,
the court must make either a finding on the
allegation or a determination that no finding is
necessary because the controverted matter will not
be taken into account in, or will not affect,
sentencing. A written record of these findings and
determinations must be appended to any copy of the
presentence report made available to the Bureau of
Prisons.
Fed. R. Crim. P. 32(c)(1).[2] This court has required
“literal compliance” with this provision, stating that it
“helps to ensure that defendants are sentenced on the
basis of accurate information and provides a clear record
for appellate courts, prison officials, and administrative
agencies who may later be involved in the case.” United
States v. Tackett, 113 F.3d 603, 613-14 (6th Cir. 1997).
In the present case, the district court did not comply with
the requirements of Rule 32(c)(1). Both Corrado and
Tocco objected to several findings in the presentence
report, including the leadership role of the defendants,
the finding of a conspiracy to murder Bowman, and the
determination that Corrado was armed at the time that the
defendants extorted money from Sophiea. The district
court did not set out findings as to any of these issues at

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No. 02-1511 United States v. Carter 25
sentencing. Instead, it either summarily adopted the
findings of the presentence report or simply declared that
the enhancement in question was supported by a
preponderance of the evidence. . . .
In Tackett, the defendants similarly objected to their
sentences on the ground that the district court made no
findings as to contested issues of fact. After listening to
counsels’ arguments regarding an enhancement for
obstruction of justice, the district judge “stated simply
that ‘the court adopts the factual findings and guideline
applications in the presentence report.’” Tackett, 113
F.3d at 614 (second alteration in original). This court
concluded that “this is a far cry from the making of a
finding for each matter controverted, as the plain
language of Rule 32 requires,” and remanded for
resentencing. Id.; see also United States v. Monus, 128
F.3d 376, 396 (6th Cir. 1997) (“The law in this circuit
clearly prohibits a court faced with a dispute over
sentencing factors from adopting the factual findings of
the presentence report without making factual
determinations of its own.”); United States v. Mandell,
905 F.2d 970, 974 (6th Cir. 1990) (holding that a district
court's sentence that simply adopted the findings of the
presentence report as to controverted factual matters
violated Rule 32).
We therefore conclude that Corrado and Tocco must be
resentenced in compliance with the requirements of Rule
32. Without a record of the district court’s findings, we
are unable to conduct a meaningful review of its
determinations as to the base offense level and specific
enhancements that it imposed upon the defendants.
Id. at 540-41.
In United States v. Osborne, 291 F.3d 908, 912 (6th Cir.
2002), Judge Boggs himself authored an opinion reaffirming
the “literal compliance” doctrine, stating,
26 United States v. Carter No. 02-1511
the presentence report held Osborne responsible for
distributing a p p r o x i m ately 24 grams of
methamphetamine. Osborne challenged this finding
before the district court . . . . The district judge did
nothing more than state summarily that he was accepting
the sentencing range as set forth in the presentence
report. Because this is clearly insufficient to comply
with Rule 32(c)(1), we must vacate James Carl Osborne's
sentence and remand his case to the district court for
re-sentencing.
See also id. at 911 (explaining that “literal compliance” is
required) (citing Corrado and Tackett). Inexplicably, in his
majority opinion in the present case, Judge Boggs has now
departed from the binding precedent that was established by
his own Osborne opinion and the Corrado and Tackett cases
that he cited in Osborne.
Of course, Judge Boggs’ opinion does not expressly admit
that it violates the “literal compliance” doctrine; rather, the
opinion attempts to rely upon “harmless” error analysis.
According to the majority opinion, the Rule 32 violation was
“harmless” because the two 1981 convictions could not
possibly have been consolidated for sentencing, and because
the 1986 conviction would be a second conviction, even if the
two 1981 convictions were consolidated. Yet the majority’s
argument is not relevant to the applicable legal standard. The
“harmless” error exception to the “literal compliance”
doctrine applies only where the controverted matter is
immaterial–i.e., where the sentence would have been
identical, even if the controverted matter had been decided to
the contrary. As stated in United States v. Darwich, 337 F.3d
645, 666 (6th Cir. 2003), regarding the replacement of Rule
32(c) with Rule 32(i)(3)(B):
This new rule attempts to eliminate confusion over
whether courts were required to make rulings on every
objection to the PSR or only those that have the potential
to affect the sentence. Fed. R. Crim. P. 32(i)(3) advisory

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No. 02-1511 United States v. Carter 27
committee's note (2002). The new rule makes clear that
controverted matters at sentencing only require a ruling
if the disputed matter will affect the eventual sentence.
In the present case, there is no question that the disputed
issue (of whether the prior convictions were related) would
affect the sentence. Two prior unrelated felony convictions
were needed to establish the offense level under which
Defendant was sentenced. See U.S.S.G. § 2K2.1(a)(2) (the
offense level is “24, if the defendant committed any part of
the instant offense subsequent to sustaining at least two
felony convictions of either a crime of violence or a
controlled substance offense.”); id. § 4A1.2(a)(2) (“Prior
sentences imposed in unrelated cases are to be counted
separately. Prior sentences imposed in related cases are to be
treated as one sentence for purposes of § 4A1.1(a), (b), and
(c). . . .”); id. § 4B1.2(c)(2) (“The term ‘two prior felony
convictions’ means . . . the sentences for at least two of the
aforementioned felony convictions are counted separately
under the provisions of § 4A1.1(a), (b), or (c).”); United
States v. Charles, 209 F.3d 1088, 1090 (8th Cir. 2000)
(calculating offense level, under § 2K2.1(a), by applying the
definition of a single felony offense from § 4B1.2(c)). The
controverted matter was not immaterial; thus, the district
court was required to rule on the matter.
The district court’s failure to rule on the objection makes
the present case indistinguishable from Darwich, in which the
Court recited the “harmless” error standard, 337 F.3d at 666,
but concluded that the error was not “harmless” and
remanded, for a ruling on the disputed matter. Id. at 667. In
Darwich, the district court had failed to specify whether an
enhancement under U.S.S.G. § 3B1.1(a) was for a leadership
role in criminal activity or, alternatively, was for otherwise
extensive involvement in criminal activity. 337 F.3d at 666
(“U.S.S.G. § 3B1.1(a) provides that a defendant's sentence
can be enhanced by four levels ‘if the defendant was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.’”); id. at 667
28 United States v. Carter No. 02-1511
(“the district court did not issue a ruling on the disputed
matter of whether Darwich’s illegal drug activity was
extensive or involved more than five individuals”). The
district court’s failure to specify which of the two
explanations had justified the enhancement meant that the
district court’s decision was ambiguous and unclear.
In the present case, the district court’s decision was
similarly ambiguous and unclear. Defendant disputed the
finding that there had been two prior unrelated convictions;
Defendant argued that two prior (state court) felony
convictions for offenses committed on January 7, 1981 and
January 18, 1981 were consolidated for sentencing and were
thus related, under U.S.S.G. § 4A1.2, Application Note 3(C).
The Probation Department presented three independent,
alternative grounds denying the objection, arguing that (1) the
January 1981 offenses were unrelated (under U.S.S.G.
§ 4A1.2, Application Note 3), because there was an
intervening arrest; (2) there was no formal consolidation order
and thus the two January 1981 offenses did not meet the
criterion for consolidation in sentencing (and the offenses did
not otherwise meet the criteria for relatedness under U.S.S.G.
§ 4A1.2, Application Note 3); and (3) the issue was moot,
because a base offense level of 24 would have applied, even
if the prior offenses had been related. In denying Defendant’s
objection, without explanation, the district court never stated
which of the three independent arguments it was relying
upon; compliance with Rule 32 avoids the type of confusion
that has resulted in the present case, where it is impossible to
ascertain which argument(s) the district court relied upon.
The district court’s failure to specify which of the alternative
grounds it was relying upon was identical to the situation in
Darwich, where the error was not “harmless.”
To further illustrate how the majority has misconstrued
“harmless” error analysis, the present case can be contrasted
with a case in which a Rule 32 infraction was properly
deemed “harmless.” In United States v. Parrott,148 F.3d 629
(6th Cir. 1998), the defendant “contended generally that there

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No. 02-1511 United States v. Carter 29
was no evidence to support the § 2T1.3(b)(1) enhancement,”
because there was no evidence that an offense occurred, or
was charged, as the enhancement required. Id. at 633. The
district court disposed of this matter by making a clear legal
conclusion that was supported with a factual finding: “[t]he
court asserted that the government had proved by a
preponderance of the evidence that Parrott’s conduct violated
Tennessee’s statute for theft of property.” Id. However, this
Court determined that there was a violation of Rule 32,
because the district court “did not make independent findings
with respect to the elements of the offense.” Id. Yet this
Court made clear that the district court had not committed a
blanket, wholesale violation of Rule 32 but, rather, only a
partial infraction. Id. (“the District Court did not fully comply
with Rule 32(c)(1)”) (emphasis added). The partial error was
immaterial, because the defendant had admitted, at a plea
hearing, to having a prior offense that would support the
enhancement. Id. at 634 (“Parrott’s plea of guilty to filing a
false tax return for the year 1990 . . . constitutes an admission
. . . . In sum, although the District Court technically erred by
adopting the challenged paragraph of the presentence report
in support of the § 2T1.3(b)(1) enhancement, the error was
harmless in light of Parrott’s own admissions at the plea
hearing.”).
In Parrott, this Court simply examined the factual record,
to determine if the district court’s clear legal conclusion was
supported. There was no suggestion that the appeals court
would have been free to substitute its own legal conclusion if
the district court had completely disregarded Rule 32, by not
issuing any legal conclusion whatsoever, on a disputed
matter. Parrott in no way contradicted Darwich’s holding
that where the district court summarily adopts the presentence
report’s conclusion on a disputed matter, a remand is required
under Rule 32. Thus, it is beyond question that the law of this
Circuit, as established by the cases set forth above, requires
a remand in the present case, because the district
court summarily adopted the presentence report on the
disputed issue of prior related offenses.
30 United States v. Carter No. 02-1511
The majority has attempted to rationalize its violation of the
law of this Circuit as an attempt to avoid “a waste of judicial
resources.” Even if the majority’s decision truly were the
most efficient course of action, nonetheless, it goes without
saying that this Court is not free to violate binding case law
in the name of efficiency. This panel is not free to abandon
the “literal compliance” doctrine that this Court has
previously adopted. Turker v. Ohio Dep’t of Rehab. &
Corrs., 157 F.3d 453, 457 (6th Cir. 1998) (“a panel of this
Court cannot overrule the decision of another panel.”)
(citations and internal quotation marks omitted).
In addition, even if the majority were not violating binding
law on this issue, the efficiency argument would be
unpersuasive. In Buford, the Supreme Court explained that a
district court’s experience and expertise in sentencing issues
place the district court in the best position to make the
determination of whether there was consolidation for
sentencing. 532 U.S. at 64 (“the district court is in a better
position than the appellate court to decide whether a particular
set of individual circumstances demonstrates ‘functional
consolidation.’ That is so because a district judge sees many
more ‘consolidations’ than does an appellate judge.”); id. at
66 (citing “the comparatively greater expertise of the District
Court” in matters of consolidation for sentencing).
Undoubtedly, the district court’s greater experience and
expertise in sentencing allow the district court to rule on
issues such as consolidation with far greater efficiency than
this Court can in adjudicating such issues. The true “waste of
judicial resources” occurs when this Court attempts to
speculate in areas that lie squarely within the district court’s
expertise, instead of simply remanding for an initial ruling by
the district court. The most efficient course of action would
have been to remand–not coincidentally, that is the outcome
that is required by Rule 32 and the “literal compliance”
doctrine.
For the aforementioned reasons, I respectfully dissent.

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