UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
GEORGE VINCENT PELOSO, JR., DEFENDANT-APPELLANT
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 motion to correct a presentence investigation report under Fed.R.Crim.P. 32 does not confer jurisdiction on the district court after sentencing, especially when the defendant failed to object to the report at trial.
Peloso, indicted for escape, pled guilty and was sentenced. He later filed a motion to correct his presentence report, alleging false information was …
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 28 U.S.C. § 2241 Petition For Writ Of Habeas Corpus cases and more on FLexlaw
PER CURIAM:
Peloso, a federal prisoner, was indicted for escape from federal prison in violation of 18 U.S.C. § 751(a). He pled guilty to the charge, and, at a separate sentencing hearing, stated that he had been given an opportunity to review the presentence investigation report, and had no corrections to make to it. Peloso was given a one-year sentence consecutive to the sentence he was currently serving.
Almost one year later, Peloso filed a motion under Fed.R.Crim.P. 32 requesting a correction of the presentencing report. He claimed that the parole commission relied on some allegedly false information from the report (stating that Peloso stole a prison van to effectuate his escape) to give him maximum time without parole. The motion was summarily denied by the district court.
This court has recently held that Fed.R.Crim.P. 32 does not confer jurisdiction on the district court to consider a motion to correct a presentence investigation report. United States v. Fischer, 821 F. 2d 557 (11th Cir.1987). The correct procedure to pursue a Rule 32 violation is to do so on direct appeal. Cf. United States v. O’Neill, 767 F. 2d 780 (11th Cir.1985). The issue may be pursued in some cases under Rule 35, within 120 days of the last order imposing sentence. See Fischer at 558; United States v. Edmondson, 818 F. 2d 768 (11th Cir.1987) (per curiam). Additionally, such a motion may be construed as a section 2255 habeas corpus petition, or a section 2241 habeas petition, (directed at the parole commission for using false information). Fischer, at 559.
In this case, remanding Peloso s claim to the district court for treatment as a § 2241 petition would be fruitless, given his failure to object to the report at sentencing. We have previously held that, where a defendant was given an opportunity to examine his PSI report, in order to bring a Rule 32 issue in a post-conviction-proceeding, the defendant must have objected to the presentencing report at trial. To raise it for the first time post-judgment is too late. Simmons v. United States, 777 F. 2d 660 (11th Cir.1985) (Rule 32 issue brought up in a section 2255 petition barred for failure to challenge PSI report at trial). For these reasons, the judgment of the district court dismissing Peloso’s claim is
AFFIRMED.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
United States v. Sarduy, 838 F.2d 157 (6th Cir. 1988)…nd the conclusion reached by the Eleventh Circuit to be sound and adopt it as the law for this circuit. We note also that in addition to a Rule 35 motion, a defendant may raise an alleged Rule 32 violation on direct appeal. United States v. Peloso, 824 F. 2d 914, 915 (11th Cir.1987); United States v. O’Neill, 767 F. 2d 780, 787 (11th Cir.1985). Since Sarduy did not raise this issue in his direct appeal and since he did not file a Rule 35 motion within 120 days of the affirmance of his conviction, he has los…
Authorities Cited
- United States v. O'Neill, 767 F.2d 780 (11th Cir. 1985)
- United States v. Edmondson, 818 F.2d 768 (11th Cir. 1987)
- United States v. Fischer, 821 F.2d 557 (11th Cir. 1987)
- Simmons v. United States, 777 F.2d 660 (11th Cir. 1985)