United States v. Jacques, Yudit

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1402
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
YUDIT JACQUES,
Defendant-Appellant.
__________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 797—James F. Holderman, Judge.
__________
ARGUED SEPTEMBER 4, 2003—DECIDED OCTOBER 8, 2003
__________
Before FLAUM, Chief Judge, and EASTERBROOK and
MANION, Circuit Judges.
FLAUM, Chief Judge. Yudit Jacques pled guilty to one
count of attempting to possess with intent to distribute in
excess of 500 grams of methamphetamine in violation of 21
U.S.C. § 841. She now appeals the District Court’s failure
to grant her the statutory time to review the presentence
report. For the reasons stated herein, we affirm.
2 No. 03-1402
I. BACKGROUND
On August 9, 2002, United States Postal Inspectors
discovered a suspicious package at the Los Angeles Airport
mail facility. A search of the package revealed four plastic
bottles containing approximately 1,821 grams of a white
crystal substance which later tested positive for the pres-
ence of methamphetamine. After removing the majority of
the drugs and resealing the package, an undercover inspec-
tor delivered the package to the address on the shipping
label. Yudit Jacques signed for the package and took it into
her residence. Agents then executed a search warrant for
Jacques’ residence and recovered the package. On Novem-
ber 13, 2002, Jacques pled guilty to attempting to possess
with intent to distribute in excess of 500 grams of metham-
phetamine.
Sentencing was set for February 11, 2003, and Jacques
was instructed to file objections to the presentence report
(PSR) by January 23, 2003. However, Jacques still had not
received a copy of the PSR by January 24, 2003, and
therefore filed a motion requesting a fourteen-day extension
of time to file objections. The district court issued an order
stating that “[t]he court having been advised that counsel
received the presentence report on January 25, 2003,
defendant is given to January 31, 2003 to file her objections
and/or motions for departure.” Jacques filed her objections
and a motion for downward departure on February 3, 2003,
and sentencing took place as scheduled on February 11.
Jacques now appeals, asserting that she was not granted
the appropriate time to review the PSR and file objections
under Federal Rule of Criminal Procedure 32. The govern-
ment argues that Jacques either waived or forfeited her
right to relief by failing to object to the shortened time
period at the sentencing hearing.
No. 03-1402 3
II. DISCUSSION
Jacques alleges that her rights under Rule 32(e)(2) and
Rule 32(f)(1) were violated when the sentencing occurred
seventeen days after the PSR was tendered and the District
Judge allowed the defendant only seven days to file objec-
tions to the PSR. Rule 32(e)(2) states that “[t]he probation
officer must give the presentence report to the defendant,
the defendant’s attorney, and an attorney for the govern-
ment at least 35 days before sentencing unless the defen-
dant waives this minimum period.” Fed. R. Crim. P.
32(e)(2). Rule 32(f)(1) provides that the parties have “14
days after receiving the presentence report” to “state in
writing any objections.” Fed. R. Crim. P. 32(f)(1).
The government admits that Jacques did not receive the
mandated thirty-five days to review the PSR and fourteen
days to file objections to the PSR. However, the government
contends that Jacques waived or forfeited her Rule 32
rights by participating in her sentencing hearing without
objecting at the hearing or requesting a continuance. The
government further argues that Jacques was not prejudiced
by the shortened time period.
Waiver is the intentional relinquishment of a known
right. See United States v. Olano, 507 U.S. 725, 733, 113
S. Ct. 1770, 123 L. Ed. 2d 508 (1993); United States v.
Staples, 202 F.3d 992, 995 (7th Cir. 2000). Waiver extin-
guishes any error and precludes appellate review. See
Olano, 507 U.S. at 733. Forfeiture, on the other hand, is the
failure to make a timely assertion of a right. Id. at 731.
Forfeited errors are reviewable under the plain error
standard. Id. at 733. We have often stated that whereas
“waiver is accomplished by intent, forfeiture comes about
through neglect.” Staples, 202 F.3d at 995; United States v.
Perry, 223 F.3d 431, 433 (7th Cir. 2000).
In this case, Jacques forfeited, rather than waived, her
Rule 32 rights. There is no evidence that Jacques intention-
4 No. 03-1402
ally relinquished the right to have more time to review and
object to the PSR. In fact, the evidence is to the contrary.
Jacques objected to the shortened time period by filing a
motion requesting a fourteen-day extension of time to file
objections. Jacques’ failure to object again at the sentencing
hearing itself was a failure to make a timely assertion of a
right, not a relinquishment of that right.
This case is distinguishable from cases cited by the
government where defendants waived their right to appeal
by failing to object. See United States v. Staples, 202 F.3d
992, 995 (7th Cir. 2000) (holding that where the defendant
knew he had the right to object and affirmatively decided
not to object, the defendant waived his right to appeal);
United States v. Knorr, 942 F.2d 1217, 1221 (7th Cir. 1991)
(stating that the defendant waived his Rule 32 rights by
participating in the sentencing without objection based on
the shortened time period); United States v. Busche, 915
F.2d 1150, 1151 (7th Cir. 1990) (stating that the defendant
waived his Rule 32 rights when neither the defendant nor
his lawyer asked for additional time). Here, Jacques filed a
motion with the District Court requesting the time guaran-
teed by Rule 32 and the motion was denied. Any dicta in
Knorr implying that the objection must occur at sentencing
and cannot occur before sentencing would eliminate the
distinction between forfeiture and waiver, and Knorr should
not be read to create the requirement that defendants must
object multiple times or waive their rights. By failing to
object at the sentencing hearing, Jacques forfeited but did
not waive her Rule 32 rights.
Because Jacques forfeited her rights under Rule 32, the
District Court’s decision to shorten the time to object to the
PSR is reviewed for plain error. Plain error is an error that:
(1) is plain or clear; (2) affected substantial rights; and (3)
“seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Gray,
332 F.3d 491, 492 (7th Cir. 2003). Appellants typically show
No. 03-1402 5
that an error affected substantial rights by proving that the
error was prejudicial. Id. Jacques asserts that she was
prejudiced by the shortened time period in two ways. First,
Jacques claims she was denied the time needed to cooperate
with the government and meet the final requirement for the
Safety Valve provision of U.S. Sentencing Guidelines
Manual § 5C1.2. Second, Jacques asserts that she did not
have enough time to challenge the quality and purity of the
recovered methamphetamine. However, Jacques has
provided no evidence that an extra few days would have
changed the outcome in her case. Jacques had three months
with which to comply with U.S. Sentencing Guidelines
Manual § 5C1.2 and did not do so. At the sentencing
hearing Jacques never requested additional time to meet
with the government and cooperate. As for the quality and
purity of the methamphetamine attributed to her, Jacques
had access to the government’s laboratory report before she
pled guilty. At no time prior to this appeal did Jacques ask
to have the drugs re-tested or state any doubts regarding
the quality and purity of the drug. Therefore, Jacques is
unable to prove that the District Court committed plain
error by denying her the statutory time to review the PSR.
The final issue for this Court to resolve is whether
sanctions should be imposed on Jacques’ counsel, James
Tunick, for filing Appellant’s Opening Brief after the time
for filing expired. In light of Mr. Tunick’s frequent service
on appointed cases before this Court, his lack of timeliness
in this case does not merit sanctions.
III. CONCLUSION
The District Court erred by not granting Jacques the
proper time period to review her PSR mandated by Rule 32.
However, Jacques has not shown that this error affected
her substantial rights. For the foregoing reasons, Jacques’
sentence is AFFIRMED.
6 No. 03-1402
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-8-03