United States of America v. Antwaun Gilden

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0586n.06
No. 07-6260
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTWAUN GILDEN,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF KENTUCKY
O P I N I O N
Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. Antwaun Gilden pleaded guilty to possession
with intent to distribute five grams or more of cocaine base and to possession of a firearm in
furtherance of drug trafficking. At his sentencing hearing, Gilden objected on the basis that the
Presentence Investigation Report (“PSR”) contained facts that he had not admitted as part of his plea
agreement and that these facts might negatively impact his classification by the Bureau of Prisons
(“BOP”). The district court declined to rule on this objection because, as Gilden and the PSR
agreed, the facts in question would not affect the length of Gilden’s sentence. Gilden appeals the
district court’s actions and argues that the district court erred by failing to attach a copy of its rulings
on Gilden’s objections to the PSR as required by Federal Rule of Criminal Procedure 32(i)(3)(C) and
by failing to resolve a factual dispute that may have affected Gilden’s placement by the BOP.
The relevant part of Rule 32 reads:

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At sentencing, the court:
(A) may accept any undisputed portion of the presentence report as a
finding of fact;
(B) 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; and
(C) must append a copy of the court’s determinations under this rule to any
copy of the presentence report made available to the Bureau of Prisons.
Fed. R. Crim. P. 32(i)(3). We require literal compliance with Rule 32 and apply harmless-error
analysis to any violations. United States v. Roberge, 565 F.3d 1005, 1011 (6th Cir. 2009).
At sentencing, Gilden objected to the description of facts contained in the PSR. The district
court listened to argument regarding this objection and complied with Rule 32(i)(3)(B); it considered
Gilden’s objection and determined that a ruling was unnecessary because resolution would not affect
sentencing. Gilden does not argue that the district court failed to make the determination required
by Rule 32(i)(3)(B). Instead, Gilden argues that the district court erred by failing to append a record
of this determination to the PSR. The government does not contend that the district court appended
this document, and the record does not reflect that it was attached to the PSR. Accordingly, it is
clear that the district court failed to comply with the literal dictates of Rule 32(i)(3)(C). However,
immediately after objecting to the description of the facts contained in the PSR, Gilden’s counsel
stated: “I ask if [the letter detailing Gilden’s objections to the facts described in the PSR] will be
attached to the presentence investigation report indicating [Gilden’s] position, I think that would
suffice.” Joint Appendix at 94-95 (Sent’g Tr. at 5-6). In the context of this sentencing hearing, this
statement by counsel would have led the district court to believe that Gilden’s objection to the PSR

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would be satisfied if Gilden’s own letter was sent to the BOP. The district court attached this letter,
thus alerting the BOP to the controverted facts in the manner requested by Gilden’s counsel.
Because Gilden’s counsel stated that Gilden’s objection could be addressed by appending
Gilden’s letter to the PSR and because the district court complied with this request, we DENY
Gilden’s requested relief and AFFIRM the district court’s judgment and sentence.

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