CHARLES SIMMONS, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that a defendant cannot collaterally attack his sentence based on alleged inaccuracies in the pre-sentence investigation report if he had the opportunity to object to the report before sentencing and failed to do so.
Simmons pleaded guilty to bank robbery and was sentenced to 20 years. He later sought to amend his pre-sentence investigation report (PSI) and reduce …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Collateral Attack On Sentence cases and more on FLexlaw
PER CURIAM:
Simmons pleaded guilty to bank robbery and was sentenced to 20 years as provided in his plea agreement. At sentencing Simmons asked that he be given only 15 years, a sentence that would expire at the same time as a concurrent state sentence.
Both Simmons and his attorney stated that they had reviewed the pre-sentence investigation report (PSI). The attorney told the court that he wanted to review a couple of points about the PSI. First, Simmons denied that he was ever charged with using a weapon in an escape. Apparently in connection with this point, counsel gave the court a letter from the state attorney’s office. Second, counsel said that the report was in error in stating that he gambled on football. The court directed that the comments of Simmons and his attorney be attached to the PSI. The court then sentenced Simmons to 20 years.
Later Simmons filed a Rule 35 motion in which he asked that the PSI be corrected to delete the reference to shooting and wounding a corrections officer and to delete convictions that had been ruled null and void by the Florida courts. The court noted that Rule 35 did not embrace such relief. Nevertheless, it ordered that the PSI be amended by the addition of an excerpt of the transcript of the sentencing proceedings containing the remarks of Simmons and his counsel, the letter from the state attorney’s office referred to in the transcript, and a copy of defendant’s Rule 35 motion.
Simmons then filed his § 2255 petition alleging that the PSI contained “erroneous information” and that “unconstitutional convictions” had been used to enhance his sentence. The alleged “erroneous information,” as far as we can discern from reading the petition, relates to two matters: information that Simmons had shot and wounded a corrections officer, which he said had been found by the state attorney’s office to be untrue, and that he had been guilty of an assault in Alabama on FBI officers. As best we can tell the first of these was the instance covered by the letter from the state attorney’s office that was received and attached to the PSI. The § 2255 petition contains nothing further about unconstitutional convictions. Finally, the petition says that Simmons explained to his attorney that the PSI should be amended to reflect the truth because it might make a difference with respect to whether Simmons would get the 15 year sentence he was going to ask for, and that attorney said he would call the matter to the court’s attention but did not.
The district court denied the petition on the ground that it was aware at sentencing of the “exact contentions” made in the petition. As best we can tell no assertion respecting “unconstitutional convictions” was made at sentencing, and we cannot tell that the allegation about assault on FBI agents in Alabama was made known.
In any event, Simmons’ assertions are laid to rest by the fact that he and his attorney had access to the report before sentencing, had an opportunity to raise ob jections and did so, but did not include the objections now made. This comes too late. U.S. v. Donn, 661 F. 2d 820, 824 (9th Cir. 1981); U.S. v. Leonard, 589 F. 2d 470, 470-72 (9th Cir.1979); U.S. v. Plisek, 657 F. 2d 920, 925 (7th Cir.1981).
Simmons says his attorney misled him by failing to get the PSI amended as he said he would (presumably as to the assault on the FBI agents in Alabama, since the report was amended with respect to the escape incident). But Simmons himself acknowledged to the court that he had reviewed the report and had asked for no such correction.
Simmons’ desire still is to get 15 years instead of 20. The trial judge made clear he would carry out the plea agreement for 20.
AFFIRMED.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
United States v. Yussel Brody, 808 F.2d 944 (2d Cir. 1986)…rmination of Brody’s sentence.” J.App. at 78. DISCUSSION A. Correction of the Presentence Report A Rule 35 motion provides only for reduction of sentence, not for correction of a presentence report. Fed.R.Crim.P. 35; see Simmons v. United States, 777 F. 2d 660, 661-62 (11th Cir.1985). Judge Bartels treated Brody’s request for correction of the report as a motion under Rule 32 of the Federal Rules of Criminal Procedure, which requires a sentencing court to make [*947] a finding as to the accuracy of each c…
-
United States v. Edmondson, 818 F.2d 768 (11th Cir. 1987)…fendant or his counsel complain that they had inadequate time to examine the PSI or assert that it contained inaccuracies. A defendant who wishes to challenge factual statements in a PSI must follow the procedures set out in Rule 32. Simmons v. US., 777 F. 2d 660 (11th Cir.1985); U.S. v. Ruiz, 580 F. 2d 177, 178 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 732, 58 L.Ed.2d 712 (1978).1 The defendant also contends that his counsel was ineffective for not contending that the government illegally pressed…
-
Parks v. United States, 832 F.2d 1244 (11th Cir. 1987)…s v. Edmondson, 818 F. 2d 768 (11th Cir.1987) (failure to raise objections at sentencing hearing as to inadequate time to review PSI or as to report’s inaccuracy bars raising such objection in a later motion under Rule 35); Simmons v. United States, 777 F. 2d 660 (11th Cir.1985) (failure to raise objections as to PSPs inaccuracy at sentencing hearing bars raising such objections in a section 2255 petition). Due process protects a defendant’s right not to be sentenced on the basis of false information and in…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Karel Plisek, 657 F.2d 920 (7th Cir. 1981)
- United States v. Aron Edward Donn, 661 F.2d 820 (9th Cir. 1981)
- United States v. Leonard, 589 F.2d 470 (9th Cir. 1979)