United States v. Charles Schrader ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-3855
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Charles Schrader
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Rapid City
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Submitted: October 21, 2016
Filed: February 2, 2017
[Published]
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Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
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PER CURIAM.
Charles D. Schrader violated the conditions of his supervised release. He
appeals only the district court’s1 refusal to redact the Supplemental Presentence
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The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
Investigation Report (PSR). Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
The government sought to revoke Schrader’s supervised release for two
reasons: (1) cocaine possession and (2) sexual assault. It later added (3) alcohol
consumption. Before the hearing, the government announced it did not have and
would not present evidence about allegations (1) and (2). Schrader presented
evidence that the victim fabricated allegations (1) and (2). The district court granted
Schrader’s motion to seal both petitions, but refused to strike allegations (1) and (2).
The court stated that Schrader did not have a right to amend the petitions because
they were not his pleadings and were based on information at the time of filing. The
court granted the government’s motion to dismiss allegations (1) and (2).
The district court sustained two factual objections to the PSR paragraphs
covering allegations (1) and (2). It, however, refused to redact or amend the
paragraphs. The court emphasized that the hearing transcript and PSR would show
that the objections were sustained, and that the judgment would show that allegations
(1) and (2) were dismissed.
Schrader contends that the refusal to redact information about the alleged
sexual assault was an abuse of discretion. See United States v. McLemore, 5 F.3d
331, 332 (8th Cir. 1993) (reviewing district court action on PSR challenges for
compliance with Rule 32). See also United States v. Asante, 782 F.3d 639, 649 (11th
Cir. 2011) (reviewing for abuse of discretion); United States v. LeBlanc, 762 F.2d
502, 505 (6th Cir. 1985) (same).
Federal Rule of Criminal Procedure 32 “does not require a court to strike
controverted material not considered in sentencing. . . . The district court need only
satisfy Rule 32.” United States v. Smith, 40 F.3d 933, 936 (8th Cir. 1994). See also
United States v. Orchard, 332 F.3d 1133, 1137 n.2 (8th Cir. 2003). Rule 32(d)(3)
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excludes from a PSR, as relevant here, two types of information: “(A) any diagnoses
that, if disclosed, might seriously disrupt a rehabilitation program; . . . and (C) any
other information that, if disclosed, might result in physical or other harm to the
defendant or others.”
Schrader contends that the sexual-assault allegations will disrupt his
rehabilitative program because a sexual offense will prevent his acceptance to many
treatment centers. Schrader’s argument never mentions “diagnoses,” as required by
Rule 32(d)(3)(A). Schrader offers only speculation that treatment centers will reject
him due to unproven material. PSRs are generally confidential. See United States v.
Williams, 624 F.3d 889, 894 (8th Cir. 2010). Only with a court order may a PSR be
seen by anyone except the court, counsel, or defendant. See D.S.D. Crim. LR
32.1(B). Most important, the district court ensured that the judgment shows that the
sexual-assault allegations were dismissed.
Schrader argues for the first time on appeal the potential of physical harm from
the sexual-assault allegations. He offers no reasoning or supporting facts. Even if
Schrader preserved this argument, alleging possible physical harm, without more, is
too speculative to justify exclusion under Rule 32(d)(3)(C). See United States v.
Bartlett, 416 F. Appx 508, 510 (6th Cir. 2011) (finding no violation of Rule 32 where
the district court refused to strike sexual-abuse allegations and instead indicated it did
not resolve their truth).
The district court followed Rule 32 in ruling on the disputed PSR paragraphs.
Compliance with Rule 32 sufficiently alleviates any concern that others will rely on
the unproven allegations. See United States v. Hopkins, 824 F.3d 726, 735 (8th Cir.
2016) (holding concerns that prison officials will rely on unfounded, detrimental PSR
information are “met by a district court’s compliance with Rule [32(i)(3)(B)]”).
Because Rule 32 does not compel exclusion of the PSR paragraphs, the district court
correctly refused to redact them.
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The judgment is affirmed.
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