United States v. Pugh , 69 F. App'x 628 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 03-6166
DARRYLL ARTHUR PUGH, a/k/a
Howie,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-02-3)
Submitted: April 18, 2003
Decided: July 14, 2003
Before WILKINSON, WILLIAMS, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded with instructions by
unpublished per curiam opinion.
COUNSEL
Darryll Arthur Pugh, Appellant Pro Se. Samuel Gerald Nazzaro, Jr.,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
2 UNITED STATES v. PUGH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Darryll Arthur Pugh appeals the district court’s order denying his
motion requesting that his presentence report ("PSR") be unsealed and
a complete copy be forwarded to him. For the reasons that follow, we
affirm the district court’s order in part, vacate it in part, and remand
the case for further consideration consistent with this opinion.
First, Pugh argues that Bureau of Prisons ("BOP") Program State-
ment No. 1351.05, which prohibits federal inmates from possessing
copies of their PSR, denies him his constitutional rights to a fair trial
and access to the courts. Pugh’s trial, however, has already occurred,
and his PSR, which relates to his sentencing, would have no bearing
on the fairness of his trial in any event. Moreover, Pugh cannot claim
denial of access where he has not yet attempted to initiate any collat-
eral attack of his conviction. Thus, we affirm the district court’s
implicit rejection of Pugh’s constitutional claims.
The district court also addressed Pugh’s claim under the Freedom
of Information Act ("FOIA"), 5 U.S.C. § 552 (2000), citing to United
States Dep’t of Justice v. Julian, 486 U.S. 1 (1988). The district court
cited Julian for the proposition that an inmate may view his or her
own PSR and take handwritten notes, but is not entitled to a copy
thereof. However, we find that Julian stands for the opposite proposi-
tion: that under FOIA, an inmate is entitled to a copy of his or her
own PSR from the Department of Justice ("DOJ"), the BOP, or the
Parole Commission. In Julian, the Supreme Court noted the courts’
reluctance to give a third party access to a PSR prepared for another
individual in the absence of a showing of special need. However, the
Court held that a similar restriction on discovery is not applicable
when the individual requesting discovery is the subject of the PSR.
The Court stated, "there simply is no privilege preventing disclosure
in the latter situation." Julian, 486 U.S. at 14 (emphasis in original).
UNITED STATES v. PUGH 3
Therefore, we vacate the district court’s order to the extent it finds
that Pugh has no right to a copy of his PSR under Julian, and remand
for further consideration.
We note that, pursuant to § 552(a)(4)(B), a FOIA action may be
brought either: (1) where the complainant resides; (2) where the
agency records are situated; or (3) the District of Columbia. We can-
not determine from the available record, however, whether venue is
appropriate in the Northern District of West Virginia. The record
casts no light on the physical location of the PSR and, while Pugh is
apparently incarcerated in Pennsylvania, we express no opinion as to
where he "resides" within the meaning of § 552. Accordingly, on
remand the district court should address whether Pugh’s FOIA claim
is in the proper court.
Accordingly, we affirm the district court’s implicit rejection of
Pugh’s constitutional claims, vacate the district court’s order to the
extent it rejects Pugh’s FOIA claim based on Julian, and remand the
case to the district court for further consideration consistent with this
opinion. We also deny Pugh’s motion to expedite the appeal as moot,
deny his motion to appoint counsel, and deny his motion for summary
judgment. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED IN PART; VACATED IN PART;
AND REMANDED WITH INSTRUCTIONS