United States of America v. David Wayne Hull

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 07-3736
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UNITED STATES OF AMERICA
v.
DAVID WAYNE HULL
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal No. 03-cr-00096)
District Judge: The Honorable Gary L. Lancaster
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Submitted Under Third Circuit LAR 34.1(a)
October 30, 2009
BEFORE: SMITH, FISHER, and NYGAARD, Circuit Judges.
(Filed: November 4, 2009)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge

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After we vacated one count of conviction, the District Court re-sentenced
Appellant David Wayne Hull to one hundred and thirty months imprisonment. Hull again
appeals, arguing that the District Court erred by failing to give him an opportunity to
review his presentence report. Finding no error, we will affirm the District Court.
I.
David Wayne Hull is the admitted Imperial Wizard of the Ku Klux Klan. He was
arrested in February of 2003 and eventually indicted and charged with numerous
violations of Federal law pertaining to firearms and explosives. He was found guilty on
seven of ten counts and originally sentenced to one hundred and forty-four months
imprisonment. Appealing this conviction for the first time, we vacated his conviction at
Count Seven and affirmed on all the remaining counts of the indictment. We remanded
the case for re-sentencing. In September of 2007, the District Court reduced Hull’s
sentence to one hundred and thirty months imprisonment. Hull appeals once more, this
time raising two points of error in the District Court’s new sentence. We find each
argument meritless and will affirm the sentence.
II.
Hull first argues the District Court erred plainly when it failed to sua sponte allow
Hull to review the pre-sentence report prepared in his case before he was re-sentenced.
More accurately, Hull argues that the District Court erred in not permitting him to review
for the second time the presentence report. This was the same, unaltered presentence

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report he admitted to reviewing prior to his first sentencing and acknowledged discussing
with his lawyer. Additionally, this is the same presentence report Hull failed to object to
at his original sentencing proceeding.
Fed.R.Crim.P. 32(c)(3)(A) requires that a district court “verify that the defendant
and defendant’s counsel have read and discussed the presentence report” prior to
sentencing. United States v. Stevens, 223 F.3d 239, 241 (3d Cir. 2000). We have never
interpreted this Rule as imposing an “absolute requirement” that a district court
personally inquire if a defendant has had an opportunity to read the report and discuss it
with his or her lawyer. United States v. Mays, 798 F.2d 78, 80 (3d Cir. 1986). Even were
such an inquiry an absolute requirement, our review of the record satisfies us that Hull
and his counsel were fully aware of the information contained in the presentence report,
both at his first sentencing hearing and at his second proceeding.
At his first sentencing, Hull was specifically asked by the District Court whether
he had read the report and Hull indicated that he had. Hull’s counsel also demonstrated
familiarity with the presentence report. Hull also was asked by the District Court at his
second sentencing hearing whether Hull had reviewed the presentence report. After first
denying that he had received it, Hull retracted that statement and indicated that he had
indeed reviewed the report. The District Court also correctly noted at the second
sentencing hearing that Hull had made numerous objections to the presentence report and
that each of the objections had been ruled on. Our opinion vacating one of Hull’s counts

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of conviction did not affect Hull’s prior objections to or the District Court’s ruling on the
presentence report.
Because Hull did not object to the presentence report prior to his sentencing
hearing, we may vacate Hull’s sentence only if we find plain error that was prejudicial.
See United States v. Olano, 507 U.S. 725, 732-34 (1993). We find no error on this record
and affirm the sentence imposed by the District Court.
III.
Hull’s final issue on appeal need not detain us long. Hull attempts to raise an
ineffective assistance of counsel claim based on his lawyer’s failure to object to the
District Court’s purported error in not giving Hull an opportunity to review his
presentence report. Our jurisprudence is clear that we do not review claims of ineffective
assistance of counsel on direct appeal except under very narrow circumstances where
there is clear evidence in the record of both deficient performance and prejudice requiring
no further factual development. See United States v. Thornton, 327 F.3d 268, 271-72 (3d
Cir. 2003); see also Massaro v. United States, 538 U.S. (2003) (“[I]neffective-assistance
claims ordinarily will be litigated in the first instance in the district court, the forum best
suited to determining the adequacy of representation during an entire trial.”). We find no
extraordinary circumstances that would counsel us to review this claim on direct appeal.
IV.

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In conclusion, for the reasons stated above, we will affirm the sentence, without
prejudice to Hull’s right to raise the ineffective assistance of counsel claim in collateral
proceedings.

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