Where a U.S. District Court prevented the defendant from receiving a copy of the presentencing report prior to sentencing, this decision violated Rule 32 of the Federal Rules of Criminal Procedure but was ultimately harmless error.

The 7th U.S. Circuit Court of Appeals affirmed a decision by U.S. Circuit Judge Sue E. Myerscough, Central District of Illinois.

Keith Melvin pleaded guilty to possessing with intent to distribute more than 50 grams of methamphetamine. The probation office prepared a presentence investigation report and filed it with the court electronically.

The report noted that Melvin’s crime carried a mandatory minimum sentence of 15 years in prison followed by 10 years of supervised release. The probation office also mailed Melvin’s attorney a letter regarding the report. The letter stated that the report was electronically filed, but a copy of the report was not provided to Melvin. The letter then directed Melvin’s attorney to refrain from giving Melvin a copy of the report and instead to review the report with him.

The attorney complied, reviewing the report with Melvin without giving the report to Melvin. Melvin’s attorney also raised four objections to the report, which were resolved before the probation office issued a revised report.

At the sentencing hearing, Melvin confirmed that he reviewed the report with his attorney. Melvin noted that he did not receive the report himself and asked the U.S. District Court if he could get a copy of it. The district court denied the request, noting that there was confidential information in the report that would be harmful to Melvin and his family if it were made public.

The district court sentenced Melvin to 15 years in prison and 10 years of supervised release, equivalent to the mandatory minimum. Melvin then appealed.

On appeal, Melvin argued that he should have received his own copy of the report. The appellate panel began by finding that 18 U.S.C. Section 3552(d) did not require that a defendant be provided with a copy of the report prior to sentencing.

The panel noted that the section merely required that the court assure that the report was disclosed to the defendant, counsel for the defendant and the attorney for the Justice Department. The panel stated that the direction to Melvin’s attorney to review the report with him was sufficient to satisfy the disclosure requirement of Section 3552(d).

Next, the panel turned to Rule 32(e)(2) of the Federal Rules of Criminal Procedure. The panel found that this rule did require that a defendant receive a copy of the report. The panel stated that the rule specified that the report must be given to the defendant, the defendant’s attorney and an attorney for the Justice Department.

The panel found that, under its plain meaning, the rule could not be satisfied by giving the report only to the defendant’s attorney and the Justice Department attorney. The panel noted that the rule did not define the contours of a defendant’s possession of the report, and that allowing a defendant to possess the report in prison could pose a risk in certain cases to members of the defendant’s family or to cooperating witnesses.

The panel stated that the rule allowed district courts the discretion to determine where and for how long the defendant may possess the report.

Finally, the panel determined that though the district court erred in failing to give Melvin a copy of the report, that error was harmless.

The panel stated that it was convinced that returning the case to the district court would result in Melvin receiving the same sentence, as he was sentenced to the mandatory minimum and his sentence could not be lowered if he were to be resentenced.

The panel, therefore, affirmed the district court’s decision.

United States v. Keith A. Melvin

No. 19-1409

Writing for the court: Judge Michael S. Kanne

Concurring: Chief Judge Diane P. Wood and Judge Amy Coney Barrett

Released: Jan. 24, 2020