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United States Court of Appeals, Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Maria de Lourdes ACOSTA, Defendant-Appellant.

No. 18-50351

Decided: November 26, 2019

Before: FERNANDEZ, M. SMITH, and MILLER, Circuit Judges. Sherri Walker Hobson, Daniel Earl Zipp, Assistant U.S. Attorneys, Zachary Howe, Office of the US Attorney, San Diego, CA, Connie V. Wu, Assistant U.S. Attorney, US Department of Justice, Southern District of California, San Diego, CA, for Plaintiff - Appellee Kimberly Sue Trimble, Trial Attorney, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant - Appellant


Maria de Lourdes Acosta appeals her sentence for failure to surrender to serve her sentence 1 for a drug offense conviction.2 We affirm.

Acosta first challenges her sentence of imprisonment and supervised release on the basis that the district court committed procedural error when it failed to order a new presentence report (“PSR”) and did not explain its reasons for the lack of a need therefor on the record. Because that claim was not made to the district court, we review for plain error. See Fed. R. Crim. P. 52(b); see also United States v. Depue, 912 F.3d 1227, 1232–33 (9th Cir. 2019) (en banc); United States v. Potter, 895 F.2d 1231, 1238 & n.6 (9th Cir. 1990). We, of course, apply the usual elements of plain error review. See United States v. Olano, 507 U.S. 725, 732–37, 113 S. Ct. 1770, 1777–79, 123 L. Ed. 2d 508 (1993); Depue, 912 F.3d at 1232.

In the case at hand, we agree that the district court did commit error that was plain when it failed to order a PSR regarding the self-surrender offense, and did not explain the reasons for that choice on the record. See Fed. R. Crim. P. 32(c)(1); USSG § 6A1.1;3 United States v. Turner, 905 F.2d 300, 300–02 (9th Cir. 1990).4 However, it is equally clear that Acosta’s rights were not substantially affected, that is to say that on this record she has not “demonstrated a reasonable probability that [she] would have received a different sentence if the district court had” ordered a whole new PSR rather than proceeding as it did. United States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008); see also Depue, 912 F.3d at 1234–35. Unlike the record in Turner, 905 F.2d at 300–02, the record here shows that the district court ordered an update of the PSR for the underlying offense, that Acosta was interviewed by the probation officer, that her explanations were included in the updated PSR, and that the parties were able to (and did) present their positions to the district court at the sentencing hearing. Nothing before us indicates that there was some relevant and helpful information available which would have made an iota of difference in the sentence.5 Thus, we see no basis for exercising our discretion under the fourth step of plain error review. See Depue, 912 F.3d at 1232.

Acosta also attacks the district court’s fixing of her term of supervised release at the midpoint of the Guideline range. See USSG § 5D1.2(a)(2) (range of one to three years). Beyond the flaw pointed to above, she argues that the district court did not explicitly state the lowest point in that range—one year. However, the district court did state the maximum sentence of imprisonment, and from that the range for Guideline purposes inexorably followed. See 18 U.S.C. § 3146(b)(1)(A)(i) (imprisonment for ten years maximum); id. § 3559(a)(3) (class C felony); id. § 3583(b)(2) (supervised release of not more than three years); USSG § 5D1.2(a)(2) (sentencing range); cf. United States v. Cope, 527 F.3d 944, 951 (9th Cir. 2008). The district court did not commit a plain error. Also, even if there were error, it surely did not affect Acosta’s substantial rights. Acosta’s two-year supervised release term for the self-surrender offense will run concurrently with her four-year supervised release term for the underlying offense. And on this record, there is no reason to think that the district court would have imposed less than a two-year term of supervised release for the self-surrender offense. Indeed, it actually considered the possibility of running that term consecutive to the supervised release term for the underlying offense. We see no basis to exercise our discretion pursuant to the fourth step of plain error review.



1.   See 18 U.S.C. § 3146(a)(2), (b)(1)(A)(i) (hereafter “self-surrender offense”).

2.   See 21 U.S.C. §§ 952, 960 (hereafter “underlying offense”).

3.   Unless otherwise stated, all references to the United States Sentencing Guidelines are to the November 1, 2016, version.

4.   The court in Turner did not explicitly set forth the standard of review that it was applying, but based upon its discussion, the defendant could have satisfied the plain error standard. Certainly nothing suggests that Turner saw the error as a member of that “very limited class of errors that trigger automatic reversal.” United States v. Davila, 569 U.S. 597, 611, 133 S. Ct. 2139, 2149, 186 L. Ed. 2d 139 (2013) (internal quotation marks omitted); see also United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct. 2159, 2164–65, 176 L. Ed. 2d 1012 (2010).

5.   See United States v. Whitworth, 856 F.2d 1268, 1287–88 (9th Cir. 1988).

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