Jose Ruben Rodriguez-Parra, a Mexican citizen with a history of five prior involuntary removals, pleaded guilty to illegally reentering the United States after removal. His presentence report (PSR) calculated a guideline range of 18 to 24 months but recommended an upward variance to 33 months based on his belligerent conduct during arrest, which included damaging vehicles, fleeing the scene, and physically assaulting officers and medical staff. During his allocution, Rodriguez-Parra used a translator to claim he was not disrespectful to police and had not hit other cars, contradicting the PSR's account. However, he did not file written objections to the PSR, did not object when the court adopted the report, and did not object when the court asked if there were any procedural objections before imposing the sentence. The district court adopted the PSR's facts, noted that Rodriguez-Parra's statements were 'wildly implausible,' and sentenced him to 33 months. Rodriguez-Parra appealed, arguing the court erred by adopting the PSR facts despite his contradictory allocution.
The Tenth Circuit held that Rodriguez-Parra failed to preserve his claim that the district court erred in adopting the PSR's factual findings. Under Federal Rule of Criminal Procedure 32(i)(3), a district court may rely on facts in the PSR unless the defendant objects. To preserve an issue for appeal, a defendant must 'adequately alert' the court to the specific factual inaccuracy. The court found Rodriguez-Parra's allocution statements were ambiguous and did not constitute a clear objection to the PSR. Unlike in United States v. Harrison, where a pro se statement was deemed sufficient, Rodriguez-Parra's statements came during allocution rather than before the court adopted the PSR, and his defense counsel explicitly disclaimed any procedural objections immediately after. The court read the district judge's comments about the defendant's 'wildly implausible' statements as a consideration of acceptance of responsibility under the Sentencing Guidelines, not as a ruling on a factual dispute. Furthermore, because Rodriguez-Parra failed to make a plain-error argument on appeal, the court deemed the issue waived and declined to review it entirely.
The judgment is affirmed without remand. The decision reinforces that defendants must make clear, specific objections to PSR facts before sentencing to preserve the issue for appeal. Vague denials or statements made during allocution that do not explicitly challenge the report's findings will not trigger the government's burden to prove disputed facts. The ruling clarifies that defense counsel's disclaimers of objections can effectively waive a defendant's right to contest PSR facts, even if the defendant made contradictory statements personally.
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