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United States v. Murchison

United States Court of Appeals, First Circuit

July 26, 2017

AKYLLE MURCHISON, Defendant, Appellant.


          Peter J. Cyr and Law Offices of Peter J. Cyr on brief for appellant.

          Thomas E. Delahanty II, United States Attorney, and Margaret D. McGaughey, Assistant United States Attorney, on brief for appellee.

          Before Thompson, Stahl, and Barron, Circuit Judges.

          THOMPSON, Circuit Judge.


         Back in 2014, Akylle Murchison was picked up and charged in connection with a lengthy investigation into a cocaine-producing and -selling conspiratorial enterprise. Murchison pled guilty to a one-count indictment for violating 21 U.S.C. §§ 841(a)(1) and 846 (he conspired with others to distribute, and possessed with intent to distribute, twenty-eight grams or more of mixtures containing cocaine and cocaine base) and to a one-count information under 21 U.S.C. § 841(a)(1) (he possessed with intent to distribute a substance containing bk-MDEA, or ethylone, usually called a "bath salt").

         At sentencing and in his sentencing memorandum, Murchison objected to the Pre-Sentence Investigation Report's (PSR) inclusion of paragraphs 10 and 83, which reference information (false information, says Murchison) given by a cooperating source who claims Murchison also was involved in purchasing firearms.[1] Murchison asked the court to strike those paragraphs, or at least to initial the paragraphs and indicate that there were insufficient facts to support the information. In ruling, the district-court judge explained, "All right, I'm going to leave [the paragraphs] in the report. I'm going to indicate for the record that it won't make any difference with regard to whatever sentence I give, but I think it's proper to be in the report." After another effort by Murchison, in which he argued that the information contained in paragraphs 10 and 83 would negatively impact the Bureau of Prison's (BOP) classification determination and the availability of a 500-hour drug treatment program, the judge reiterated: "I'm not going to strike it. I think I was more than lenient in not using it as part of my sentencing determination. It's an accurate statement, and to the extent the Bureau of Prisons considers it so be it, though I'm advised by probation it probably won't happen, though that doesn't enter into my judgment on that."[2] In due course, Murchison was sentenced to concurrent prison terms of 108 months.

         On appeal, Murchison presents us with two complaints: (1) the court erred when it refused to strike paragraphs 10 and 83 from the PSR, and therefore the matter should be remanded so the PSR can be amended, [3] and (2) the sentence imposed is unreasonable. We take each in turn.

         Rule 32 and the Bureau of Prisons

         Murchison claims the court's refusal to strike these paragraphs was a violation of Fed. R. Crim. P. 32(i)(3)(B). He also says the paragraphs' inclusion is prejudicial to the way in which the BOP will classify and house him, and will negatively affect the availability of rehabilitation programs. We review a district court's compliance with Rule 32 de novo. United States v. Acevedo, 824 F.3d 179, 184 (1st Cir. 2016) (quoting United States v. González-Vélez, 587 F.3d 494, 508 (1st Cir. 2009)).

         Before we get into these issues, we provide the following primer to explain generally how the pieces of this Rule 32-and-the-BOP puzzle come together.

         Rule 32(i)(3)(B) -- the subsection specifically raised by Murchison -- instructs that a court "must -- for any disputed portion of the presentence report or other controverted matter --rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing." Fed. R. Crim. P. 32(i)(3)(B). And Rule 32(i)(3)(C) suggests a clear connection between the PSR and the BOP: it requires a court to "append a copy of the court's determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons." Fed. R. Crim. P. 32(i)(3)(C). So Rule 32(i)(3)(C) tells us that the PSR, accompanied by other Rule 32 "determinations, " gets sent to the BOP.

         For its part, the BOP's Inmate Security and Custody Classification Manual (the BOP Manual) explains that, prior to classification, the Designation and Sentence Computation Center (DSCC) must receive all sentencing material, including the PSR, judgment, statement of reasons (SOR), [4] and an "Individual Custody and Detention Report"[5] from the sentencing court, U.S. Probation Office (USPO), and the U.S. Marshals Service (USMS).[6]Custody & Care: Designations, Fed. Bureau of Prisons, (last visited July 17, 2017); see also Fed. Bureau of Prisons, Program Statement: ...

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