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Post-sentence Report Adequate Where Pre-sentence Report Unavailable
The U.S. Seventh Circuit Court of Appeals held that a post-sentence report
was an adequate substitute for a pre-sentence report where the latter was
unavailable.
Kendall Warner was convicted in 1985 of sending threatening communications
through the mail, 18 U.S.C. §876, ¶ 3. The U.S. Parole Commission, using a
post-sentence report dated December 19, 2000, identified Warner's crime as
extortion by mail, 18 U.S.C. §876, ¶ 2. Warner, seeking to resolve the
discrepancy, requested the district court to provide him with a copy of his
pre-sentence report.
The district court discovered that no copies of the pre-sentence report
were available. A flood had destroyed Warner's attorney's copy. The
government prosecutors had destroyed their copies pursuant to record
retention rules, and the federal records center could not find a copy of
the report. Consequently, the district court denied Warner's request but
obtained and provided him with a copy of the post-sentence report. Warner
appealed.
The appeals court held that Warner had a right to the pre-sentence
investigation report. However, the district court did not err in providing
only a post-sentence report when the pre-sentence report was unavailable.
The district court's decision was affirmed. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
United States v. Warner, 59 Fed.Appx. 134 (7th Cir. 2003).
was an adequate substitute for a pre-sentence report where the latter was
unavailable.
Kendall Warner was convicted in 1985 of sending threatening communications
through the mail, 18 U.S.C. §876, ¶ 3. The U.S. Parole Commission, using a
post-sentence report dated December 19, 2000, identified Warner's crime as
extortion by mail, 18 U.S.C. §876, ¶ 2. Warner, seeking to resolve the
discrepancy, requested the district court to provide him with a copy of his
pre-sentence report.
The district court discovered that no copies of the pre-sentence report
were available. A flood had destroyed Warner's attorney's copy. The
government prosecutors had destroyed their copies pursuant to record
retention rules, and the federal records center could not find a copy of
the report. Consequently, the district court denied Warner's request but
obtained and provided him with a copy of the post-sentence report. Warner
appealed.
The appeals court held that Warner had a right to the pre-sentence
investigation report. However, the district court did not err in providing
only a post-sentence report when the pre-sentence report was unavailable.
The district court's decision was affirmed. This case is published in the
Federal Appendix and is subject to rules governing unpublished cases. See:
United States v. Warner, 59 Fed.Appx. 134 (7th Cir. 2003).
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Related legal case
United States v. Warner
| Year | 2003 |
|---|---|
| Cite | 59 Fed.Appx. 134 (7th Cir. 2003). |
| Level | Court of Appeals |
| Attorney Fees | 0 |
| Damages | 0 |
| Injunction Status | N/A |
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENDALL WARNER, Defendant-Appellant.
No. 02-2553
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
59 Fed. Appx. 134; 2003 U.S. App.
February 10, 2003 *, Submitted
* After an examination of the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).
February 10, 2003, Decided
NOTICE: [**1] RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY: Appeal from the United States District Court for the Northern District of Indiana South Bend Division. No. 85 CR 29. James T. Moody, Judge.
DISPOSITION: Affirmed.
COUNSEL: For UNITED STATES OF AMERICA, Plaintiff-Appellee: Andrew B. Baker, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Hammond, IN USA.
KENDALL D. WARNER, Defendant-Appellant, Pro se, Lexington, KY.
JUDGES: Before Hon. JOHN L. COFFEY, Circuit Judge, Hon. FRANK H. EASTERBROOK, Circuit Judge, Hon. DANIEL A. MANION, Circuit Judge.
OPINION:
[*135] ORDER
After he was denied parole, federal prisoner Kendall Warner requested a copy of his presentence investigation report. The district court denied his request. We affirm.
Warner requested the report to resolve a dispute about the 1985 conviction for which he is serving time. Warner believes that in denying him parole the parole board relied on an inaccurate postsentence report to calculate the severity of his offense. The postsentence report, dated December 19, 2000, identifies his crime as extortion by mail, see 18 U.S.C. § 876, [**2] P 2. But Warner claims, and the transcript of his plea hearing corroborates, that he actually pleaded guilty to the lesser-included offense of sending threatening communications through the mail without the intent to extort money, id. § 876, P 3.
Warner does not have access to his presentence investigation report because his copy was destroyed in a flood at his attorney's office. He then requested a copy of his presentence report from the district court. The court learned that apparently no other copy exists. The copies held by the probation office and the government have been destroyed pursuant to normal document retention policies, and the copy sent to the federal records center could not be found. Thus, the district court could not meet Warner's request and denied his motion, but nonetheless the court obtained and provided Warner with a copy [*136] of his December 2000 postsentence report, which was relied upon by the parole board, as a substitute.
Presentence investigation reports are judicial records that are afforded extra protection by the courts, United States v. Corbitt, 879 F.2d 224, 236 (7th Cir. 1989), so as to protect the traditional confidentiality [**3] of the personal information they contain, see Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949). The district court had jurisdiction over Warner's request because the public, including the parties to an action, have a right of access to judicial records. See Smith v. United States Dist. Ct. Officers, 203 F.3d 440, 441 (7th Cir. 2000); Corbitt, 879 F.2d at 236. But Warner does not dispute that the relief he sought was impossible to provide, and thus we affirm the district court's ruling.
We need not reach the merits of Warner's additional argument that his due process rights were violated by the use of the alleged inaccurate postsentence report to determine whether or not he should receive parole because this contention was not put before the district court and so is not properly before us. Praxair, Inc. v. Hinshaw & Culbertson, 235 F.3d 1028, 1035 (7th Cir. 2000).
AFFIRMED.
No. 02-2553
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
59 Fed. Appx. 134; 2003 U.S. App.
February 10, 2003 *, Submitted
* After an examination of the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).
February 10, 2003, Decided
NOTICE: [**1] RULES OF THE SEVENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
PRIOR HISTORY: Appeal from the United States District Court for the Northern District of Indiana South Bend Division. No. 85 CR 29. James T. Moody, Judge.
DISPOSITION: Affirmed.
COUNSEL: For UNITED STATES OF AMERICA, Plaintiff-Appellee: Andrew B. Baker, Jr., OFFICE OF THE UNITED STATES ATTORNEY, Hammond, IN USA.
KENDALL D. WARNER, Defendant-Appellant, Pro se, Lexington, KY.
JUDGES: Before Hon. JOHN L. COFFEY, Circuit Judge, Hon. FRANK H. EASTERBROOK, Circuit Judge, Hon. DANIEL A. MANION, Circuit Judge.
OPINION:
[*135] ORDER
After he was denied parole, federal prisoner Kendall Warner requested a copy of his presentence investigation report. The district court denied his request. We affirm.
Warner requested the report to resolve a dispute about the 1985 conviction for which he is serving time. Warner believes that in denying him parole the parole board relied on an inaccurate postsentence report to calculate the severity of his offense. The postsentence report, dated December 19, 2000, identifies his crime as extortion by mail, see 18 U.S.C. § 876, [**2] P 2. But Warner claims, and the transcript of his plea hearing corroborates, that he actually pleaded guilty to the lesser-included offense of sending threatening communications through the mail without the intent to extort money, id. § 876, P 3.
Warner does not have access to his presentence investigation report because his copy was destroyed in a flood at his attorney's office. He then requested a copy of his presentence report from the district court. The court learned that apparently no other copy exists. The copies held by the probation office and the government have been destroyed pursuant to normal document retention policies, and the copy sent to the federal records center could not be found. Thus, the district court could not meet Warner's request and denied his motion, but nonetheless the court obtained and provided Warner with a copy [*136] of his December 2000 postsentence report, which was relied upon by the parole board, as a substitute.
Presentence investigation reports are judicial records that are afforded extra protection by the courts, United States v. Corbitt, 879 F.2d 224, 236 (7th Cir. 1989), so as to protect the traditional confidentiality [**3] of the personal information they contain, see Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949). The district court had jurisdiction over Warner's request because the public, including the parties to an action, have a right of access to judicial records. See Smith v. United States Dist. Ct. Officers, 203 F.3d 440, 441 (7th Cir. 2000); Corbitt, 879 F.2d at 236. But Warner does not dispute that the relief he sought was impossible to provide, and thus we affirm the district court's ruling.
We need not reach the merits of Warner's additional argument that his due process rights were violated by the use of the alleged inaccurate postsentence report to determine whether or not he should receive parole because this contention was not put before the district court and so is not properly before us. Praxair, Inc. v. Hinshaw & Culbertson, 235 F.3d 1028, 1035 (7th Cir. 2000).
AFFIRMED.