                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 20 1999
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 98-3226
          v.                                             (D. Kansas)
 RONALD E. TIMLEY, JR.,                          (D.C. No. 96-CR-40079-1)

               Defendant - Appellant.

                             ORDER AND JUDGMENT         *

Before ANDERSON , McWILLIAMS , and LUCERO , Circuit Judges.

      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

      Ronald E. Timley, Jr. appeals the district court’s denial of his motion to

withdraw his guilty plea. Alternatively, he challenges his sentence on three

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
grounds. He contends first that the district court erred by sentencing him

pursuant to USSG § 2D1.2(a)(1) relating to the offense of selling drugs within

1000 feet of a school in violation of 21 U.S.C. § 860, when his agreement with

the government was limited to a plea of guilty to the charge of possession of

drugs with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), for which

USSG § 2D1.1(a)(3) prescribes the offense level. In particular, Timley contends

that he did not stipulate with the government to facts—selling within 1000 feet of

a school—establishing a more serious offense (§ 860) than the offense of

conviction under 21 U.S.C. § 841. Second, and alternatively, Timley argues that

if he was correctly sentenced under USSG § 2D1.2 for possession with intent to

distribute drugs near a school, then the district court erred by adding a two-level

enhancement for possessing a weapon since, allegedly, that enhancement is

allowed only for sentences calculated under § 2D1.1. Finally, Timley contends

that the district court erred by imposing a ten-year period of supervised release

since the maximum period provided by statute is five years.   See 18 U.S.C.

§ 3583(b)(1).

      We hold that the district court did not abuse its discretion by refusing to

allow Timley to withdraw his guilty plea. As to the sentencing issues we hold as

follows: (1) the record does not support the district court’s conclusion that

Timley and the government stipulated or agreed between themselves as to the

                                           -2-
facts relating to the school, thus the court erred by sentencing Timley pursuant to

USSG § 2D1.2; (2) the weapons enhancement issue, therefore, is moot; and (3)

the district court erred by imposing a ten-year period of supervised release—as

the government concedes. Accordingly, we affirm the district court’s denial of

Timley’s motion to withdraw his guilty plea, but we remand the case to the

district court with instructions to resentence Timley.

                                 BACKGROUND

      On April 1, 1996, Topeka police officers observed Timley seated in an

automobile outside an apartment. Timley exited the car and walked rapidly to the

corner of the building, then began running, withdrawing what was later

discovered to be bags of marijuana from his pocket. He subsequently entered an

apartment in which Julian C. Brown (Timley’s co-defendant) was present, tossed

away 19.99 grams of marijuana, and was ultimately arrested.

      A search of the automobile yielded a Ruger .357 revolver, an AMT brand

.30 caliber semi-automatic pistol, ammunition, a key to the apartment, 1.4 grams

of rock cocaine, and a partially smoked cigar containing marijuana. A search of

the apartment yielded 57.63 grams of rock cocaine.

                                         -3-
      On November 20, 1996, Timley and Julian C. Brown were named in a

seven-count indictment. Timley was charged with possession with the intent to

distribute approximately 1.8 grams of cocaine base on March 9, 1995, in violation

of 21 U.S.C. § 841 (count one); possession with the intent to distribute marijuana

on April 1, 1996, in violation of 21 U.S.C. § 841 (count two); possession with the

intent to distribute in excess of 50 grams of cocaine base on April 1, 1996, in

violation of 21 U.S.C. § 841 (count three); carrying a firearm on April 1, 1996, in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (counts

four and five); and possession of a firearm by a convicted felon on April 1, 1996,

in violation of 18 U.S.C. § 922(g) (count six).

      A jury trial began on June 23, 1997. On June 26, 1997, during the course

of the trial, Timley entered into a written plea agreement. In a plea proceeding

held that same day, Timley entered a plea of guilty to Count Three of the

Indictment, which reads as follows:

                                      COUNT 3

      That on or about April 1, 1996, in the District of Kansas, the
      defendants, RONALD E. TIMLEY, JR., and JULIAN C. BROWN,
      did knowingly and intentionally possess, with the intent to distribute,
      within 1,000 feet of a public school, that is Robinson Middle School,
      1125 W. 14th, Topeka, Kansas, in excess of 50 grams of a mixture or
      substance containing a detectable amount of cocaine base, commonly
      known as crack cocaine, a Schedule II controlled substance, in
      violation of Title 21, United States Code, Section 841(a)(1), and
      Title 18, United States Code, Section 2.

                                         -4-
R. Vol. I, Tab 1 at 2. The government accordingly agreed to drop the other

charges against Timley.

      The presentence investigation report (PSR) stated that “[t]he United States

Sentencing Commission Guideline for violation of 21 U.S.C. §§ [sic] 841(a)(1) is

found in U.S.S.G. §§ 2D1.2(a)(1) and 2D1.1(a)(3),” and recommended a base

offense level of 34: 32 points under § 2D1.1(a)(3) and a 2-level increase under

§ 2D1.2(a)(1). R. Vol. IV at 8-9. To that the PSR added two levels for weapons

and subtracted three levels for acceptance of responsibility, resulting in a total

offense level of 33. Timley filed objections to the PSR, including an argument

that § 2D1.1 was the correct offense guideline, not § 2D1.2, because § 2D1.2

relates to the offense of selling drugs within 1000 feet of a school in violation of

21 U.S.C. § 860, and he was charged with and only agreed to plead guilty to

violating 21 U.S.C. § 841—possession with intent to distribute.

      On February 11, 1998, Timley moved to withdraw his guilty plea, arguing,

inter alia, that he had incorrectly believed he had preserved suppression issues for

appeal. The court denied this motion.

      On July 16, 1998, Timley was sentenced to 186 months’ imprisonment and

10 years supervised release. The court, which overruled Timley’s objections and

followed the recommendation contained in the PSR, based this sentence on a total

offense level of 33 and criminal history category V. The court chose 210 months’

                                          -5-
imprisonment, the low end of the guideline range, and subtracted 24 months for

substantial assistance. Timley filed a motion for reconsideration of his sentence,

which the court also denied.

                                       DISCUSSION

A. Motion to Withdraw Plea

       Timley contends that the district court erred in denying his motion to

withdraw his guilty plea to Count 3 of the indictment, because his plea was not

knowing and voluntary. He claims that “rightly or wrongly he subjectively

believed [that] the suppression of the evidence seized on April 1, 1996 [the date

of the acts alleged in Count 3] could be addressed on appeal.” Appellant’s Br. at

26.

       At the plea proceeding in this case, conducted on June 16, 1997, Timley

orally conditioned his guilty plea on “preserv[ing] the right to possibly appeal the

suppression issues that occurred in this case prior to the trial date.” R. Vol. VI at

16. The court stated, “[a]ll right, we can make that note on the record. But you

are entering a plea of guilty. Is that correct?”    Id. Timley responded, “Yes, Your

Honor.” Id. It is unclear from the record what Timley believed he was

preserving. Timley’s counsel had filed a motion to suppress evidence relating to

Count 1, but never filed a motion with regard to Count 3 because he believed that

                                              -6-
Timley did not have standing to challenge the evidence supporting that count.

Timley’s co-defendant, Julian Brown, did file a challenge to that evidence, which

was denied.

       We review the district court’s denial of a motion to withdraw a guilty plea

only for abuse of discretion.   See United States v. Killingsworth   , 117 F.3d 1159,

1161 (10th Cir. 1997). Fed. R. Crim. P. 32(e) governs the withdrawal of pleas,

and provides in relevant part that before sentencing, “the court may permit [a

guilty] plea to be withdrawn if the defendant shows any fair and just reason.” In

deciding whether a defendant has met this burden, we consider seven factors,

which were correctly cited by the district court: (1) whether the defendant has

asserted his innocence; (2) prejudice to the government; (3) the defendant’s delay

in filing his motion; (4) inconvenience to the court; (5) the defendant’s assistance

of counsel; (6) whether the plea is knowing and voluntary; and (7) waste of

judicial resources.   See United States v. Carr , 80 F.3d 413, 420 (10th Cir. 1996)

(citing United States v. Gordon , 4 F.3d 1567, 1572 (10th Cir. 1993)).

       The district court decided that in this case, all but the first factor weighed

against Timley’s motion. As to that factor, the court concluded that Timley did

assert his innocence, cutting in favor of Timley’s motion. On appeal Timley

argues only that the sixth factor, voluntariness, was incorrectly decided by the

district court and that this error requires reversal.

                                           -7-
       Even if we were to accept Timley’s representations regarding his subjective

beliefs and their claimed impact on the issue of voluntariness, and even if we

agreed with the district court that Timley has asserted his innocence, these factors

together would not be enough for us to conclude that the district court abused its

discretion.   1
                  Rule 32(e) is by its very terms discretionary.      Gordon recognizes this

fact and incorporates a balancing test.         See, e.g. , Carr , 80 F.3d at 420-21;   Gordon ,

4 F.3d at 1572-73. Timley’s protestations of innocence and his asserted

erroneous beliefs regarding his appeal cannot outweigh the other five              Gordon

factors. In particular we emphasize Timley’s lengthy delay in filing his motion,

coupled with the crucial fact that by the time the motion was filed, Timley’s co-

defendant had already been sentenced and no longer had any incentive to comply

with his own plea agreement by testifying against Timley. We therefore uphold

the district court’s decision to deny the motion.

       Timley makes no constitutional argument regarding the voluntariness of
       1

his plea; he argues only that the district court abused its discretion under Rule
32(e) by not allowing him to withdraw his plea.

                                                 -8-
B. Choice of Offense Guideline

       Timley argues that he should have been sentenced under USSG § 2D1.1,             2

which is the general offense guideline covering drug crimes and which is the

offense guideline applied to violations of § 841(a)(1).       3
                                                                  Instead, Timley was

sentenced under USSG § 2D1.2,        4
                                         which imposes a stricter penalty for, inter alia,

drug offenses occurring near schools, and which is the offense guideline applied

for violations of 21 U.S.C. § 860.       5
                                             The only elemental difference between a

       For § 841(a)(1) convictions, the relevant portions of § 2D1.1 set the base
       2

offense level according to a Drug Quantity Table, and add 2 levels for, inter alia,
possession of a firearm. See USSG § 2D1.1(a)(3) & (b)(1).

       Section 841(a)(1) provides in relevant part that “it shall be unlawful for
       3

any person knowingly or intentionally . . . to . . . possess with intent to
manufacture, distribute, or dispense, a controlled substance.”

       The portion of § 2D1.2 relied on by the district court sets a base offense
       4

level of “2 plus the offense level from § 2D1.1 applicable to the quantity of
controlled substances directly involving a protected location or an underage or
pregnant individual.” USSG § 2D1.2(a)(1).
       5
           Section 860 provides in relevant part:

       Any person who violates section 841(a)(1) . . . of this title by
       distributing, possessing with intent to distribute, or manufacturing a
       controlled substance in or on, or within one thousand feet of, the real
       property comprising a public or private elementary, vocational, or
       secondary school or a public or private college, junior college, or
       university . . . is [for a first violation of § 860] subject to (1) twice
       the maximum punishment authorized by section 841(b) of this title;
       and (2) at least twice any term of supervised release authorized by
       section 841(b) of this title for a first offense. A fine up to twice that
       authorized by section 841(b) of this title may be imposed . . . .

                                                 -9-
§ 841(a)(1) violation and a § 860 violation is that the latter must occur near a

protected area, e.g., within 1000 feet of a school.    See 21 U.S.C. § 860(a). We

have repeatedly held that § 860 is a separate substantive offense.       See, e.g. ,

United States v. Smith , 13 F.3d 380, 382 (10th Cir. 1993).

       This case presents a unique set of facts, not likely to be repeated, and

characterized mostly by ambiguity. Clearly, Timley was not charged with, and

did not plead guilty to, possession with intent to distribute drugs near a school.

Count 3 charges only a violation of § 841, and the plea agreement        expressly limits

the plea to a § 841 offense.

       The government now states that it made a mistake in drafting Count 3 of

the indictment, charging a violation of § 841 instead of § 860, despite alleging

that Timley’s offense occurred within 1000 feet of a school.         See Appellee’s Br.

at 7. However, whether mistaken or not, the government has consistently taken

the position that Timley was only charged with and pleaded guilty to a violation

of § 841(a)(1), not § 860. Thus, as indicated above, when drafting the plea

agreement the government stated Timley’s obligation thus:

              Defendant Timley will admit his guilt and enter a plea of guilty
       to Count 3 of the Indictment [in this case]. Count 3 charges a
       violation of Title 21, United States Code, Section 841(a)(1).

R. Vol. I, Tab 59, Plea Agreement at 1 ¶ 1. And, at the plea hearing when the

court asked government counsel what the government would prove “if we went to

                                             -10-
trial in this case,” counsel recited the facts with no reference to a school or any

similar element required under § 860. R. Vol. VI at 14-16. The proffer listed

only facts necessary to a conviction for possession with intent to distribute, in

violation of § 841(a)(1).   See id.

       Failing to find any basis in the offense of conviction for the district court’s

decision to sentence Timley under the guideline for a § 860 offense, i.e., § 2D1.2,

the government mounts two arguments in favor of the court’s decision: (1) At the

plea hearing Timley agreed to facts establishing the more serious § 860 offense,

thus permitting the application of a more punitive offense guideline; and (2) even

if there was no stipulation, the court can choose a more punitive offense guideline

by taking relevant conduct into account, in order to enhance Timley’s sentence.

We examine those arguments in turn.

                                           1.

       As to the government’s first argument, the choice of offense guideline is

governed by USSG § 1B1.2(a), which provides as follows:

       Determine the offense guideline section in Chapter Two (Offense
       Conduct) most applicable to the offense of conviction (       i.e. , the
       offense conduct charged in the count of the indictment or information
       of which the defendant was convicted).         Provided , however, in the
       case of a plea agreement (written or made orally on the record)
       containing a stipulation that specifically establishes     a more serious
       offense than the offense of conviction, determine the offense

                                          -11-
      guideline section in Chapter Two most applicable to the stipulated
      offense.

(Third and fourth emphases added.) The commentary to § 1B1.2 explains the

stipulation/agreement proviso where plea agreements are concerned as follows:

      Where a stipulation that is set forth in a written plea agreement or
      made between the parties on the record     during a plea proceeding
      specifically establishes facts that prove a more serious offense or
      offenses than the offense or offenses of conviction, the court is to
      apply the guideline most applicable to the more serious offense or
      offenses established.

USSG § 1B1.2, comment. (n.1) (emphasis added).

      As the government states, “[o]ur position is that the trial court found the

defendant was convicted of section 841(a)(1), but had admitted and stipulated to

conduct which allowed the imposition of U.S.S.G. § 2D1.2.” Appellee’s Br. at 7-

8. The government does not argue that Timley’s written plea agreement contains

such a stipulation, and the district court did not rely on the written agreement in

applying § 2D1.2.   Both the government and the court have relied solely on the

record of the plea proceedings to find a § 1B1.2 stipulation. The court found that

Timley had “ in essence stipulated” to the school’s proximity, concluding “it is

obvious from the record that at the time of the plea proceeding the parties agreed

that defendant possessed crack cocaine with intent to distribute within 1000 feet

                                         -12-
of a public school.”   6
                           R. Vol. I, Tab 138 at 2, 3 (emphasis added).   What

happened on the record at the plea proceeding is necessarily undisputed; it is the

legal effect of those facts that is at issue here, and therefore our review is de

novo. See Supre v. Ricketts , 792 F.2d 958, 961 (10th Cir. 1986).

       We cannot conclude that Timley’s admissions at the plea hearing regarding

the school’s proximity were part of an agreement “made between the parties.”        7

       Despite labeling Timley’s acknowledgments as stipulations, the court
       6

appears (at least at times) not to have treated them as part of a binding agreement.
For example, at sentencing, although the court had already found that Timley had
“stipulated” to the school’s proximity, the court allowed the government to
present testimony as to the location of the school in relation to the offense, and
allowed the defense to cross-examine.     See R. Vol. V at 7-8, 14-17, 20-21.
       7
        Section 1B1.2 was recently amended to clarify this requirement, resolving
a circuit split. Its proviso previously applied “in the case of conviction by a plea
of guilty or nolo contendere containing a stipulation,” and now requires “a plea
agreement (written or made orally on the record) containing a stipulation.”    See
USSG Appendix C, Amends. 434, 438. Even prior to the clarifying amendment of
§ 1B1.2(a), we stated that

       application of the proviso turns on whether there was a   knowing
       agreement by the defendant, as part of a plea bargain , that facts
       supporting a more serious offense occurred and could be presented to
       the court for application of guidelines relating to the more serious
       offense .

United States v. Gardner , 940 F.2d 587, 591 (10th Cir. 1991) (emphasis added).
We have explained that “once the Government agrees to a plea bargain without
extracting such an admission, facts admitted by the defendant” are considered
only as relevant conduct in determining the appropriate guideline range, pursuant
to USSG § 1B1.2(b) and § 1B1.3(a).       United States v. Rutter , 897 F.2d 1558,
1561 (10th Cir. 1990). For other cases taking a similar view prior to amendment,
see, e.g. , United States v. McCall , 915 F.2d 811, 816 n.4. (2d Cir. 1990);   United
                                                                           (continued...)

                                              -13-
Rather, the parties treated the written agreement as encompassing their entire

agreement. Timley’s attorney was the first to summarize the agreement, and he

did not mention the school.      See R. Vol. VI at 2-3. The court also inquired of the

prosecutor concerning the written agreement, asking, “would you like to tell me,

from the government’s standpoint, again, about this plea agreement?”         Id. at 5.

The prosecutor explained the agreement in detail but, like defense counsel, made

no mention of the school. The court asked defense counsel if he agreed with this

recitation, and he responded that he did. The court then inquired of Timley,

referring to the written agreement:

       THE COURT:             [A]s far as you understand, this represents, in its
                              entirety, any understanding you have with the
                              government. Is that right?

       MR. TIMLEY:            Can you explain that?

       THE COURT:             Is that all your agreement with the government?
                              Does that contain everything that you agreed to in
                              your discussion?

       MR. TIMLEY:            Yes, sir.

       THE COURT:             And that the government has agreed to?

       MR. TIMLEY:            Yes, sir.

Id. at 7.

       7
        (...continued)
States v. Warters , 885 F.2d 1266, 1273 n.5 (5th Cir. 1989).

                                            -14-
       Only after the parties’ agreement had been presented to the court did the

court, by perpetuating the mistake in the indictment, elicit admissions from

Timley that his offense occurred within 1000 feet of a school. When the court

recited the facts that the government would have to prove should Timley proceed

to trial, the court (erroneously) told him that one essential element of a

§ 841(a)(1) violation would be proximity to a school. Timley stated that he

understood this, implying that he believed the government could prove that fact,

but not outright admitting it.   Id. at 13. The court later asked Timley, “did you do

what the government said you did here in Count 3?” Timley responded, “Yes, I

did, Your Honor.”     Id. at 13-14. At the end of the proceeding and after entering

his plea, he submitted and swore to the accuracy of a “Petition to Enter Plea of

Guilty,” on a form filled out by his attorney and signed by him, containing an

admission regarding the school’s location.          See R. Vol. I, Tab 59; R. Vol. VI at

17-18. There is no indication that any of these admissions were part of an

agreement between the parties, as required by § 1B1.2(a).         8

       8
        We respectfully disagree with United States v. Loos, 165 F.3d 504, 506-08
(7th Cir. 1998), where the court held that § 1B1.2(a)’s proviso is applicable when
a court can find “any step that reflects the defendants’ acknowledgment of their
conduct.” 165 F.3d at 507. The court reasoned that the proviso “is a grant of
authority to the court” that does not require defendants’ consent. Id. Yet §
1B1.2(a) by its very terms requires “a plea agreement . . . containing a
stipulation.” Such a stipulation of course requires a defendant’s consent (or there
would be no agreement).

                                             -15-
                                             2.

       The government’s second argument is based on the minority view in a

circuit split. The government argues that the location of the drug offense near a

school is “relevant” or “actual” conduct which allows a jump from § 2D1.1 to

§ 2D1.2 for calculation of Timley’s base offense level, even without a formal

stipulation as to the proximity of the school. The government cites         United States

v. Oppedahl , 998 F.2d 584 (8th Cir. 1993), and      United States v. Clay , 117 F.3d

317 (6th Cir.), cert. denied , 118 S. Ct. 395 (1997). Other circuits have held, to

the contrary, that “the concept of relevant conduct does not come into play        until

the correct offense guideline has been selected.”         United States v. Saavedra , 148

F.3d 1311, 1316 (11th Cir. 1998);     see also United States v. Chandler , 125 F.3d

892, 897-98 (5th Cir. 1997);    United States v. Locklear , 24 F.3d 641, 647-49 (4th

Cir. 1994); United States v. Elefant , 999 F.2d 674, 676-77 (2d Cir. 1993).

       Significantly, the district court did not decide or even discuss this ground

and thus the issue is not properly before us on appeal.        See R. Vol. I, Tab 136 at

4; id. , Tab 138 at 2-4. To the extent that the government argues that we can

affirm the district court’s decision on any ground supported by the record, we

note again that our cases emphasize the distinction between a plea agreement

coupled with a § 1B1.2(a) stipulation, which affects the sentencing court’s choice

of offense guideline, and a plea agreement coupled with mere admissions, which

                                            -16-
admissions are considered only in determining the appropriate guideline range.

See, e.g. , United States v. Rutter , 897 F.2d 1558, 1560-61 (10th Cir. 1990).

       We therefore conclude that Timley should have been sentenced under

§ 2D1.1, 9 not § 2D1.2,   10
                               and we remand for resentencing.    11

C. Supervised Release

       Timley argues, and the government concedes, that Timley’s sentence of 10

years’ supervised release is in excess of the five-year statutory maximum for

violations of § 841(a)(1), a Class A felony.          See 18 U.S.C. § 3583(b)(1).

Apparently the government misinformed the court at sentencing and Timley did

not object.   See Appellee’s Br. at 14. We accept the government’s concession; on

       We again emphasize that although Timley’s admissions do not support
       9

sentencing under § 2D1.2, our decision does not prevent the district court from
considering this information if it is otherwise relevant to sentencing issues. See
United States v. Big Medicine, 73 F.3d 994, 997 (10th Cir. 1995).

       Because we hold that § 2D1.2 does not apply here, we do not reach
       10

Timley’s argument that the district court misapplied § 2D1.2.

        We note that this may or may not result in a benefit to Timley. His
       11

criminal history category was previously set at V and his offense level was 33
(taking into account the erroneous addition of 2 levels under § 2D1.2(a)), for a
range of 210-262 months. The district court previously sentenced Timley to the
low end, 210 months, minus 24 months for substantial assistance (for a total of
186 months). If Timley is resentenced at offense level 31, the guideline range
will be 168-210 months. It would be within the district court’s discretion to
impose the same sentence under offense level 31—this time at the top of the
range. In any event, these are matters for the district court to decide.

                                               -17-
remand, the district court is instructed to vacate Timley’s term of supervised

release and to impose an appropriate term.

      Accordingly, we AFFIRM the denial of Timley’s motion to withdraw his

guilty plea, but we REMAND the case to the district court for resentencing in

accordance with this opinion.

                                               ENTERED FOR THE COURT

                                               Stephen H. Anderson
                                               Circuit Judge

                                        -18-


Matter of Ferguson v Eallonardo Constr., Inc. (2019 NY Slip Op 05255)

Matter of Ferguson v Eallonardo Constr., Inc.

2019 NY Slip Op 05255

Decided on June 27, 2019

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 27, 2019

528122

[*1]In the Matter of the Claim of STEPHEN FERGUSON, Appellant,
vEALLONARDO CONSTRUCTION, INC., et al., Respondents. WORKERS' COMPENSATION BOARD, Respondent.

Calendar Date: June 3, 2019

Before: Garry, P.J., Lynch, Clark, Devine and Aarons, JJ.

Aaron Zimmerman, Syracuse, for appellant.
Wolff, Goodrich & Goldman, LLP, Syracuse (Robert Geyer of counsel), for Eallonardo Construction, Inc. and another, respondents.

MEMORANDUM AND ORDER
Clark, J.
Appeal from a decision of the Workers' Compensation Board, filed August 3, 2018, which ruled, among other things, that claimant's request to cross-examine the carrier's consultant was untimely.
Claimant sustained a work-related injury to his right shoulder in August 2016; he underwent surgery in October 2016 and was awarded workers' compensation benefits. The Workers' Compensation Board acknowledged that claimant's injury could result in a permanent disability and directed that claimant schedule an appointment with his physician — either when no further medical improvement could be expected or approximately one year after surgery — to obtain said physician's opinion as to permanency. In October 2017, claimant was examined by a consultant for the employer's workers' compensation carrier, who concluded that claimant had sustained a 40% schedule loss of use of his right arm. By notice dated November 30, 2017, counsel for claimant was advised of the consultant's conclusion and was informed that claimant had 60 days within which to obtain a competing opinion on permanency from his physician or his "opportunity to submit medical evidence on permanency may be deemed waived by the [Workers' Compensation] Board." Counsel for claimant acknowledged receipt of the notice, indicated that claimant would be returning to his treating physician for an evaluation and expressed his awareness that the required form (C-4.3) needed to be filed within the 60-day period.
Counsel's subsequent efforts to persuade the carrier to stipulate to a 50% schedule loss of use of claimant's right arm were unsuccessful, and claimant was reevaluated by his treating [*2]physician on January 31, 2018. The results of that examination, which did not contain an opinion as to the issue of permanency, were communicated to the Board via form EC-4NARR dated February 13, 2018, and a hearing on permanency was scheduled. When the parties appeared for the hearing, counsel for claimant requested an opportunity to cross-examine the carrier's consultant as to how he arrived at the 40% schedule loss of use. Counsel for the employer and the carrier opposed the request as untimely, noting that the required C-4.3 form was never filed, that claimant made no attempt — prior to the date of the hearing — to cross-examine the carrier's consultant and that claimant was well aware that, should he fail to obtain a competing medical opinion and file the required form in a timely fashion, his opportunity to contest the issue of permanency may be deemed waived. The Workers' Compensation Law Judge (hereinafter WCLJ) granted claimant a "final opportunity" to file the C-4.3 form and otherwise denied claimant's request, prompting claimant to seek Board review of the WCLJ's decision.
Before claimant's application for Board review could be resolved, the parties reappeared before the WCLJ, at which time claimant renewed his request to cross-examine the carrier's consultant. The WCLJ denied that request, finding that claimant had waived his opportunity to submit the C-4.3 form, and concluded that claimant had sustained a 40% schedule loss of use of his right arm and made an award. Claimant again sought Board review, primarily contending that he had been denied his right to cross-examine the carrier's consultant. The Board affirmed the WCLJ's prior decisions regarding the schedule loss of use award and further concluded that claimant's request for cross-examination of the carrier's consultant was untimely and that he otherwise waived his opportunity to contest the issue of permanency. Claimant appeals, asserting that his request to cross-examine the carrier's consultant was timely.
We reverse. 12 NYCRR 300.10 (c) provides, in relevant part, that "[w]hen the employer or its carrier or special fund desires to produce for cross-examination an attending physician whose report is on file, the referee shall grant an adjournment for such purpose." As the Board correctly noted, although a claimant's right to cross-examine a carrier's consulting physician is not expressly referenced in the cited regulation, it "is permitted under tenets of due process" (Employer: Queens Medallion Leasing, Inc., 2015 WL 1388387, *3, 2015 NY Wrk Comp LEXIS 1752, *8-9 [WCB No. G025 6616, Mar. 19, 2015]; see Employer: Edwards Super Stores, 2017 WL 3113799, *3, 2017 Wrk Comp LEXIS 9162, *9 [WCB No. 0964 8488, July 11, 2017]; see also Matter of Campbell v Interstate Materials Corp., 135 AD3d 1276, 1277 [2016]; Matter of Floyd v Millard Fillmore Hosp., 299 AD2d 610, 611 [2002]). In this regard, a "claimant's request for cross-examination is not invalidated by the failure to produce a C-4.3 [form]" (Employer: Medhal Salam Architert, 2017 WL 3208729, *3, 2017 NY Wrk Comp LEXIS 9433, *7 [WCB No. 0072 8502, July 19, 2017]; see Employer: Queens Medallion Leasing, Inc., 2015 WL 1388387 at *4, 2015 NY Wrk Comp LEXIS 1752 at *9), but this right may be waived if not asserted in a timely manner (see Employer: BET USA/Arcade Bldg. Maint., 2018 WL 1723839, *2, 2018 NY Wrk Comp LEXIS 1660, *5 [WCB No. 0906 2376, Feb. 22, 2018]; cf. Matter of Hicks v Hudson Val. Community Coll., 34 AD3d 1039, 1040 [2006]). Notably, "[t]he only requirement is that the request for such cross-examination must be timely made at a hearing, prior to the WCLJ's ruling on the merits" (Employer: DeLeon Constr., Inc., 2017 WL 2981609, *2, 2017 NY Wrk Comp LEXIS 8923, *6 [WCB No. G166 0081, June 29, 2017]; see Employer: Queens Medallion Leasing, Inc., 2015 WL 1388387 at *4, 2015 NY Wrk Comp LEXIS 1752 at *9; Employer: Silvercrest, 2013 WL 6137697, *3, 2013 NY Wrk Comp LEXIS 11225, *8 [WCB No. 2080 1671, Nov. 14, 2013]).
Here, counsel for claimant candidly stated that he did not produce a C-4.3 form from claimant's treating physician because he believed that the opinion of the carrier's consultant so deviated from the applicable guidelines that he was "willing to take his chances . . . upon cross-examination" of that physician. As noted previously, however, claimant's right to cross-examine the carrier's consultant was not predicated upon the filing of a competing report, and counsel voiced his request for cross-examination of the consultant at the first permanency hearing scheduled in this matter. Under these circumstances, we find that the Board abused its discretion in denying as untimely claimant's request to cross-examine the carrier's consultant (see [*3]Employer: Office of Ct. Admin., 2017 WL 2900107, *2-3, 2017 NY Wrk Comp LEXIS 8745, *7-8 [WCB Nos. 2961 8102, 28423801, June 26, 2017]; Employer: Beth Abraham Health Servs., 2016 WL 7494112, *1-2, 2016 NY Wrk Comp LEXIS 13760, *4 [WCB No. G144 8925, Dec. 27, 2016]; Employer: Queens Medallion Leasing, Inc., 2015 WL 1388387 at *4, 2015 NY Wrk Comp LEXIS 1752 at *9-10; compare Matter of Brown v Clifton Recycling, 1 AD3d 735, 736 [2003]; Matter of Floyd v Millard Fillmore Hosp., 299 AD2d at 611; Employer: Greenebuild LLC, 2018 WL 3494122, 2018 NY Wrk Comp LEXIS 6332, *8-9 [WCB No. G177 9309, July 12, 2018; Employer: Coghlin-Huen, LLC, 2015 WL 5440407, 2015 NY Wrk Comp LEXIS 7506, *6-7 [WCB No. G039 6257, Sept. 11, 2015]). Accordingly, the Board's decision is reversed, and this matter is remitted for further proceedings.
Garry, P.J., Lynch, Devine and Aarons, JJ., concur.
ORDERED that the decision is reversed, without costs, and matter remitted to the Workers' Compensation Board for further proceedings not inconsistent with this Court's decision.


114 F.3d 1196
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Steve SMITH, Defendant-Appellant.
No. 96-10361.
United States Court of Appeals, Ninth Circuit.
Submitted May 6, 1997.*Decided May 15, 1997.

1
Before:  NORRIS, HALL and TASHIMA, Circuit Judges

2
MEMORANDUM**

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After trial by jury, defendant was convicted under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, of burglary in the first degree under Hawaii state law.  Although under the Sentencing Guidelines, defendant's sentence would otherwise have been in the range of 51 to 71 months, the district court determined that, under the ACA, defendant should be sentenced under the Hawaii Repeat Offender Statute, HRS § 706-606.5(1)(c)(iii), to the mandatory term of 10 years' imprisonment.  Defendant raises three contentions on appeal.

1. Notice of the Crime Charged

4
The statutory citation in the indictment was incomplete in that it referred only to the Chapter of the Hawaii Statutes, Chapter 708, mistakenly referring to it as "Section 708," and did not contain a reference to a section in that chapter.  The complete and correct citation would have been "Section 708-810," which is the section making first degree burglary a crime.

5
Defendant moved to dismiss the indictment under Fed.R.Crim.P. 7(c)(1), which requires that the indictment "shall state ... the official or customary citation of the statute ... which the defendant is alleged therein to have violated."   The district court denied the motion.  We agree with the magistrate judge's recommendation to the district court that the error was harmless under Rule 7(c)(3) because "the error or omission did not mislead the defendant to the defendant's prejudice."   As the magistrate judge stated:

6
The court finds it disingenuous of Defendant Smith to argue that the Indictment was misleading, failed to put him on notice of the charge against him, or that he was otherwise prejudiced by the omission of the precise citation for the law allegedly violated where the caption of the Indictment stated it was for "BURGLARY," the Indictment recited the elements of the crime charged and included a partial citation to the Hawaii statute, and the Indictment followed the filing of a Complaint which put the Defendant on specific notice of the citation.

7
Findings and Recommendations That Defendant's Motion to Dismiss Indictment be Denied at 3 (citing Steinert v. United States Dist. Court, 543 F.2d 69 (9th Cir.1976).  We agree and find this contention to be meritless.

2. Notice of Enhanced Sentence

8
Defendant also contends that the government should have been required "to inform him in advance of trial of its ... intent to seek an enhanced penalty."   This contention, however, has long been foreclosed by Oyler v. Boles, 368 U.S. 448, 452 (1962) (intent to seek enhanced penalty under repeat offender statute need not be included in indictment), and United States v. Kearney, 750 F.2d 787, 789-90 (9th Cir.1984) (applying Boles to assimilated crime).

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3. Application of State Mandatory Minimum under the ACA

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Defendant contends that sentencing for an assimilated crime should be governed by the Sentencing Guidelines rather than state law;  therefore, that the district court erred in sentencing him under the state Repeat Offender Statute to a substantially longer term of imprisonment.  Under our recent decision in United States v. Kaneakua, 105 F.3d 463 (9th Cir.1997), however, this contention lacks merit.  There, we held that the Hawaii Repeat Offender Statute "applies to offenses committed on federal enclaves."  Id. at 468.   As defendant forthrightly recognizes in his Reply Brief, Kaneakua is controlling and we are bound by it.

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AFFIRMED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed.R.App.P. 34(a);  Ninth Cir.R. 34-4

**
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit, except as provided by Ninth Cir.R. 36-3