United States of America v. Lela Stovall

*This decision was originally issued as an “unpublished decision”
filed on June 13 , 200 3. On July 16, 2003, the court designated the
opinion as one recommend ed for full-text publication.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0260P (6th Cir.)
File Name: 03a0260p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee.
v.
LELA STOVALL,
Defendant-Appellant.
X
-
-
-
->
,
-
N
No. 02-1210
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-80075—John Corbett O’Meara, District Judge.
Argued: May 20, 2003
Decided and Filed: June 13, 2003*
Before: NELSON, BOGGS, and COLE, Circuit Judges.
_________________
COUNSEL
ARGUED: Carolyn A. Blanchard, Northville, Michigan, for
Appellant. Jennifer M. Gorland, UNITED STATES
ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF:
Carolyn A. Blanchard, Northville, Michigan, for Appellant.
2 United States v. Stovall No. 02-1210
Jennifer M. Gorland, UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
DAVID A. NELSON, Circuit Judge. Defendant Lela
Stovall here appeals a 77-month sentence imposed after she
pleaded guilty to charges of bank fraud and conspiracy. Ms.
Stovall contends that the district court committed prejudicial
error by failing to make explicit findings in its rejection of a
series of objections she presented to her presentence report.
She further contends that some of her past criminal activity
was improperly double-counted in the calculation of her
criminal history score. Finding these contentions
unpersuasive, we shall affirm the sentence.
I
Ms. Stovall and 19 co-defendants were indicted on charges
that included conspiracy, forgery, identity theft, credit fraud,
and bank fraud. In exchange for agreement on an appropriate
sentence and the government’s promise to dismiss all other
charges against her, Ms. Stovall agreed to plead guilty to
conspiracy and bank fraud.
The plea agreement included stipulations concerning each
of the sentencing guidelines that the parties believed to be
applicable. Among other things, the parties stipulated that
Ms. Stovall’s base offense level should be enhanced by three
levels because of her managerial or supervisory role in the
conspiracy, see U.S.S.G. § 3B1.1(b); that Ms. Stovall should
receive three criminal history points for each of two prior
federal sentences of imprisonment exceeding 13 months, see
U.S.S.G. § 4A1.1(a); and that she should receive two criminal
history points for a prior state sentence of imprisonment of at
least 60 days, see U.S.S.G. § 4A1.1(b).

-- 1 of 3 --

No. 02-1210 United States v. Stovall 3
All told, the parties agreed that Ms. Stovall’s total offense
level was 16 and that her criminal history category, based on
a criminal history score of 14, was VI. These calculations
resulted in a guideline sentencing range of 46 to 57 months.
The government agreed that a sentence of no more than 51
months would be appropriate. Of critical importance here,
Ms. Stovall agreed not to appeal any of the sentencing
calculations to which she had stipulated.
After the district court accepted Ms. Stovall’s guilty plea,
a probation officer prepared a presentence report in which her
offense level was determined to be 21 – a level that was five
above the one stipulated. The difference was due to a two-
level enhancement for production and trafficking of
unauthorized or counterfeit access devices, see U.S.S.G.
§ 2F1.1(b)(5)(B), and a three-level enhancement for
commission of the instant offenses while released on bond in
connection with another federal offense, see U.S.S.G. § 2J1.7.
The revised calculations yielded a guideline sentencing range
of 77 to 96 months.
Ms. Stovall presented 23 objections to the presentence
report. She also requested downward departures based on the
conditions of the jail in which she was detained and her
family history of schizophrenia. (On appeal, she characterizes
her departure requests as “objections” as well.)
Because of the discrepancy between the guideline sentence
range as calculated by the probation officer and the sentence
agreed upon by the parties, the district court asked Ms.
Stovall at sentencing whether she wished to renegotiate the
plea agreement or to withdraw her guilty plea. After a recess,
the parties reported that they had agreed to amend the plea
bargain by establishing a sentencing “cap” of 77 months.
Without discussion, the district court subsequently
overruled Ms. Stovall’s outstanding objections to the
presentence report. Adopting the probation officer’s factual
4 United States v. Stovall No. 02-1210
findings and calculations under the guidelines, the court
imposed sentences totaling 77 months. This appeal followed.
II
At the time of Ms. Stovall’s sentencing, Rule 32(c)(1), Fed.
R. Crim. P., provided that,
“for each matter controverted [in objections to a
presentence report], 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.”
This court “has required ‘literal compliance’ with [Rule
32(c)(1)], 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. Corrado, 227 F.3d 528, 540 (6th Cir.
2000) (quoting United States v. Tackett, 113 F.3d 603, 613-14
(6th Cir. 1997), cert. denied, 522 U.S. 1089 (1998)). “Literal
compliance” means that the district court must make
independent factual findings and not merely adopt the
findings in the presentence report. See id. at 540-41.
Ms. Stovall contends that the district court violated Rule
32(c)(1) by summarily overruling four objections to the
presentence report: (1) her objection that because she had
worked closely with only one of her co-defendants and had no
knowledge of the others’ activities, her role in the conspiracy
had been over-stated; (2) her objection to the enhancement of
her offense level for commission of her offenses while
released on bond; (3) her objection to the assessment of
criminal history points for sentences imposed in earlier
federal cases; and (4) her requests for a downward departure.
In our view, Ms. Stovall’s objections did not raise
controverted matters of the type that Rule 32(c)(1) requires to
be resolved on the record.

-- 2 of 3 --

No. 02-1210 United States v. Stovall 5
As to the complaint that the district court failed to make a
factual finding on her role in the conspiracy, Ms. Stovall
stipulated in the plea agreement that a three-level
enhancement was appropriate because she was a manager or
supervisor. In light of that stipulation, there was no need for
the district court to make a finding on the issue. See United
States v. Dunbar, 9 Fed. Appx. 411, 414 (6th Cir. 2001),
where we held that an objection foreclosed by the defendant’s
plea agreement did not constitute a “controverted matter” for
purposes of Rule 32(c)(1). Likewise, the district court was
not required to determine whether Ms. Stovall’s prior federal
sentences should have been counted in the calculation of her
criminal history score – for Ms. Stovall had stipulated that a
separate three-point addition was warranted by each of the
sentences in question. See Dunbar, 9 Fed. Appx. at 414.
Turning to Ms. Stovall’s contention that the district court
should have made a finding on her objection to the three-level
enhancement for having committed the present offenses while
released on bond, we note that Ms. Stovall never disputed the
fact that the period in which she committed her offenses
overlapped the period in which she was on bond. Given the
overlap, enhancement of the sentence was mandated by 18
U.S.C. § 3147. See United States v. Lewis, 991 F.2d 322, 324
(6th Cir. 1993). Section 2J1.7 of the sentencing guidelines
“effectuate[s] the mandate” of § 3147 by prescribing a three-
level enhancement. United States v. Bahhur, 200 F.3d 917,
926-27 (6th Cir. 2000). Citing a notice requirement found in
U.S.S.G. § 2J1.7, comment. (backg’d), Ms. Stovall contends
that she did not receive sufficient notice that the enhancement
would be imposed. But the presentence report indisputably
notified Ms. Stovall that she stood to receive the
enhancement, and Ms. Stovall’s suggestion that she was
entitled to notice at the time of her release is contrary to our
decision in Lewis. See Lewis, 991 F.2d at 323-24. Because
application of the enhancement was required by statute, and
because Ms. Stovall plainly received sufficient notice, there
was no genuine controversy for the court to resolve.
6 United States v. Stovall No. 02-1210
1To the extent that Ms. Stovall seeks to challenge the merits of the
district court’s refusal to depart downward, her challenge cannot be
maintained on ap peal absent evidence that the court was unaware of its
discretion to depart. See Un ited States v. H ill, 167 F.3d 1055, 1070-71
(6th C ir.), cert. denied, 528 U.S. 872 (1999). We find no such evidence
here.
Ms. Stovall complains next of the district court’s failure to
justify its rejection of her requests for departure from the
guideline range. As we see it, however, Ms. Stovall’s
departure requests were not “objections to the presentence
report” within the meaning of Rule 32(c)(1). The report, after
all, merely set forth the requests without comment. It follows
that the district court was not obligated to make express
findings with respect to the requests. See United States v.
Bowden, 4 Fed. Appx. 398, 399 (9th Cir. 2001) (rejecting an
argument that Rule 32(c)(1) requires explicit rulings on
requests for downward departure).1
III
Finally, Ms. Stovall contends that a state sentence for
passing counterfeit checks should not have been used in the
calculation of her criminal history score, the passing of the
checks already having been treated as part of the offense
conduct that resulted in a separately counted federal sentence.
Ms. Stovall did not raise this argument in the district court.
On the contrary, she stipulated to the addition of two points
to her criminal history score on account of the state sentence
– and, to repeat, she expressly agreed not to appeal any of the
stipulated sentencing factors. Ms. Stovall thus waived her
right to appeal the two-point addition. See United States v.
Allison, 59 F.3d 43, 46 (6th Cir.), cert. denied, 516 U.S. 1002
(1995).
AFFIRMED.

-- 3 of 3 --