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750 – Sentencing Hearing, Generally (§6A)

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§765 Resolution of Disputes

(U.S.S.G. §6A1.3)

1st Circuit finds evidentiary hearing not necessary to contest loss amount. (219)(765) Defendant, convicted of fraud offenses, sought an evidentiary hearing at sentencing, arguing that it was necessary to resolve competing claims about the amount of loss. The district court denied a hearing. On appeal, the First Circuit found that defendant had an adequate opportunity to be heard and to question any anomalies in the evidence supporting his sentence. U.S. v. Fiete-Garcia, __ F.3d __ (1st Cir. May 23, 2019) No. 18-1067.

9th Circuit finds compliance with rule requiring resolution of factual disputes. (219)(765) Defendant was convicted of health care fraud based on his fraudulent certification to Medicare that certain patients were terminally ill and could be admitted to hospice care. The presentence report enhanced defendant’s offense level by 18 because defendant’s company had billed Medicare more than $3 million. Defendant objected to the PSR’s loss amount. Under Federal Rule of Criminal Procedure 32(i)(3)(B), the district court must rule on any disputes with the presentence report or determine that a ruling is unnecessary. The district court overruled defendant’s objections because it found that the government proved the amount of loss at defendant’s trial. The Ninth Circuit found that the district court had complied with Rule 32(i)(3)(B). U.S. v. Wijegoonaratna, __ F.3d __ (9th Cir. Apr. 26, 2019) No. 17-50255.

7th Circuit reverses for failure to adequately explain supervised release conditions. (580)(765) At sentencing, defendant challenged a supervised release condition containing a drug testing requirement, and another permitting a probation officer to visit him at work. To each of these objections, the district judge replied: “The objection is over-ruled.” The Seventh Circuit reversed, holding that rejecting defendant’s “specific, rational objections” required further explanation. Defendant had no history of drug abuse. Drug testing was a mandatory condition, but the condition “may be ameliorated or suspended” in certain cases. 18 U.S.C. § 3583(d). Therefore, the court needed to respond to the objection so that a reviewing court could understand its reasons. Defendant’s main objection to the visitation condition was that it was overly broad and might cause him to lose his job if the officer visited him at work. Again, this concern was fairly stated, though its conclusion was debatable. Nevertheless, the lack of explanation was not harmless. Defendant’s concern about his job security after release from prison was a legitimate concern. U.S. v. Moose, 893 F.3d 951 (7th Cir. June 27, 2018) No. 16-3536.

7th Circuit reverses for failure to explain why it rejected defendant’s specific objection to restitution. (610)(765) Defendant pled guilty to defrauding investors. At sentencing, he challenged the court’s restitution order and several conditions of supervised release. To each of these objections, the district judge offered the same reply: “The objection is over-ruled.” The Seventh Circuit held that the district court’s rejections of defendant’s “specific, rational objections” required further explanation. Concerning restitution, defendant made the reasonable argument that interest on the amount should be waived while he was in prison “because if the interest is growing for two years while he’s in prison and can’t afford to pay restitution, then what is a difficult amount to pay becomes an impossible amount to pay.” While stated awkwardly, it was clear that accrued interest would create a greater burden on the defendant. This greater burden might well be justified, but the district court needed to explain why it was justified. U.S. v. Moose, 893 F.3d 951 (7th Cir. June 27, 2018) No. 16-3536.

10th Circuit upholds sentence based on “Ice” rather than methamphetamine mixture. (251)(765) Defendant pled guilty to counts arising out of his role in a methamphetamine distribution conspiracy. He argued for the first time on appeal that the district court erred in calculating his guidelines range on the basis of Ice, rather than on the basis of a methamphetamine mixture. Guideline §2D1.1 defines the term “Ice” as “a mixture or substance containing d methamphetamine hydrochloride of at least 80% purity.” It also provides that “[i]f a mixture of substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.” The PSR found that since the meth mixture was over 80% pure, it was considered “Ice” for the purposes of the guideline. Defendant did not object to this or any other portion of the PSR. Consequently, the district court properly adopted these findings and determination as its own. U.S. v. Godinez-Perez, __ F.3d __ (10th Cir. Dec. 22, 2016) No. 15-3159.

5th Circuit upholds reliance on government’s unrebutted loss calculation in PSR. (219)(765) Defendant was convicted of health care fraud. He challenged on appeal the district court’s reliance on the government’s calculation of loss in the PSR, arguing that the government failed to prove that the alleged loss, $2,482,901.93, was directly attributable to the healthcare fraud. The PSR provided that “from 2004 until March 2009 … at least 22,424 [fraudulent] claims for prescriptions” were submitted to insurance companies for payment. Of the total amount requested to be paid, $2,482,901.93 was paid to defendant. A district court is entitled to rely on a PSR’s loss findings, unless the defendant shows that they are materially unreliable. Mere objection, without more, is not “competent rebuttal evidence” requiring the district court to look elsewhere. The Fifth Circuit found no clear error in relying on the unrebutted calculation in the PSR when calculating loss, nor in the money judgment against defendant ordering him to pay restitution in the same amount. U.S. v. Ayika, __ F.3d __ (5th Cir. Sept. 14, 2016) No. 15-50122.

8th Circuit upholds considering role adjustment objection as part of §3553(a) factors. (445)(765) Defendant objected to the probation office’s finding that she was not entitled to a minor or minimal participation reduction. In response, the probation office distributed a revised PSR responding to the objection. Defendant argued on appeal that the district court did not explicitly rule on her objection, but the Eighth Circuit disagreed. At sentencing, defense counsel asked the district court to “recognize [defendant’s] lesser involvement” either by giving her a minor role reduction, or by considering a variance. Immediately after this request, the district court indicated that it would consider the lesser-involvement argument as part of the §3553(a) factors. The court noted that the PSR’s addendum addressed many of defendant’s objections, and included the probation officer’s renewed conclusion that a minor-role reduction was not warranted. The record suggested that defense counsel made a strategic decision to push the contention that defendant played a less substantial role as part of the argument for a variance. U.S. v. Durham, 836 F.3d 903 (8th Cir. 2016).

1st Circuit upholds adopting PSR to support obstruction increase based on perjury at trial. (461)(765) Defendant challenged for the first time on appeal an increase for obstruction of justice based on the district court’s finding that he perjured himself during trial. The court adopted the PSR’s account as to defendant’s perjury. The PSR noted that defendant testified that he never received drugs from Magee, but the evidence showed that Magee did supply drugs to defendant. Defendant argued that the district court erred by not making independent findings. The First Circuit found no error. The district court was free to accept the undisputed portions of the PSR as findings of fact. See Fed.R.Crim.P. 32(i)(3). The court found that defendant provided “materially false” testimony when “he asserted that he never received drugs from Richard Magee.” The nature of the material falsehood here was not one in which the willfulness of the falsehood could reasonably be questioned. U.S. v. Mercer, 834 F.3d 39 (1st Cir. 2016).

5th Circuit approves increase for brandishing weapon while harboring aliens. (340)(765) Defendant pleaded guilty to harboring aliens for private financial gain. The PSR recommended an offense level of 20 under §2L1.1(b)(5)(B), noting that three aliens had positively identified defendant as the person who brandished a weapon in order to threaten them. On appeal, the Fifth Circuit held that defendant did not rebut the presumption that the PSR was reliable. He alleged that the photographic lineup from which the aliens identified him was unconstitutionally suggestive but did not provide the photographic lineup, so there was no evidence to support his argument. Defendant also contended that the aliens incorrectly identified an innocent person (co-defendant Gutierrez) from a different photographic lineup and that the firearm the aliens claimed to have seen was never found. However, while the charges against Gutierrez were dismissed, there was no indication that the dismissal occurred because the aliens misidentified Gutierrez. U.S. v. Olivares, 833 F.3d 450 (5th Cir. 2016).

8th Circuit did not plainly err in relying on information in PSR. (765) Defendant’s PSR listed two prior offenses in which defendant either displayed a steak knife in a threatening manner, or held a large kitchen knife to the neck of his father. In his sentencing memo, defendant stated that he disputed these statements. At sentencing for the current offense, the district court relied on these offenses, stating that in both cases, defendant claimed he did not display the knife in a threatening manner. Defendant complained that his written objections denied any use of a knife, but the Eighth Circuit concluded that there was no clear, specific objection to the PSRs information that defendant used a knife in the two assaults. Although defendant “disputed” certain statements in the PSR, he did not clarify how the statements were in dispute. The district court interpreted the objections more narrowly than defendant desired, and its interpretation was not obviously wrong. There was no plain error. U.S. v. Waddell, __ F.3d __ (8th Cir. Aug. 2, 2016) No. 15-2011.

8th Circuit says court properly adopted unobjected-to facts in PSR. (240)(488)(765) Defendant pled guilty to marijuana distribution and conspiracy. He argued on appeal that the district court erred in adopting the PSR’s drug quantity calculation because it double counted two witnesses’ cocaine estimates. The Eighth Circuit held that the court did not err in adopting the unobjected-to facts in the PSR. “A fact in a PSR to which the defendant has not specifically objected is a fact admitted by the defendant.” Defendant argued that this did not apply because the district court had threatened to deny him credit for acceptance of responsibility if he persisted with his objections to the PSR. The Eighth Circuit rejected this argument, finding that the court did not “threaten” defendant, but simply warned him of the consequence of pursuing frivolous guideline objections. U.S. v. Trevino, __ F.3d __ (8th Cir. July 14, 2016) No. 15-1534.

10th Circuit affirms loss finding based on unobjected-to facts in PSR. (220)(765) Defendant was an officer of the Muscogee (Creek) Nation who had authorization to provide assistance to tribal members in need. He was convicted of embezzling funds from the Tribe, using money he had withdrawn from ATMs to pay his gambling expenses. The district court found that defendant embezzled all of the money that he withdrew from the ATMs. The Tenth Circuit rejected defendant’s claim that the court improperly relied on the PSR and Addendum to make its loss finding. Defendant’s objections to the factual recitations in the PSR were inadequate, and the unobjected-to factual recitation in the report adequately supported the court’s findings. Defendant provided no receipts for the ATM withdrawals or documentation of their purposes, despite multiple requests from the Tribe. This lack of documentation was contrary to defendant’s practice when providing assistance using other methods of payment. The Addendum concluded that the loss equaled the total amount of ATM withdrawals. The district court’s view of the evidence was reasonable. U.S. v. Barnett, __ F.3d __ (10th Cir. July 11, 2016) No. 15-5055.

8th Circuit relies on un-objected portion of PSR that assault rifle could accept large capacity magazine. (330)(765) Based on weapons found at his girlfriend’s residence, defendant was convicted of being a felon in possession of a firearm. The district court applied §2K2.1(a)(3), which provides for an enhanced offense level for certain defendants if the offense involved “a semiautomatic firearm that is capable of accepting a large capacity magazine.” Defendant argued on appeal that the district court impermissibly relied on the PSR, and never made a finding that any of the firearms involved in his offense were capable of accepting a large capacity magazine. The Eighth Circuit found no error. The PSR is not evidence, but if a defendant does not object to facts set forth in the report, then the district court may accept those facts as true for purposes of sentencing. Defendant never objected to portions of the report stating that the assault rifle could accept a large capacity magazine. The court thus did not err when it adopted those facts without making a separate finding. Moreover, the trial record contained “abundant evidence” that the assault rifle was semiautomatic and capable of accepting a large capacity magazine. U.S. v. Reid, __ F.3d __ (8th Cir. July 5, 2016) No. 15-1676.

10th Circuit holds reliance on unobjected-to fact in PSR cannot be plain error. (218)(765)(855) Defendant participated in an investment scheme that caused losses in excess of $15 million. He challenged on appeal a six-level increase under §2B1.1(b)(2)(C) for 250 or more victims, contending that there was no evidence that each of the 250-plus investors suffered a loss. However, he failed to make this argument in the district court, claiming only that there was insufficient evidence that he knew there were 250 victims. The Tenth Circuit found no plain error, noting that questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error. Defendant failed to object to the PSR’s statement that defendant’s scheme defrauded over 250 victims, so the district court’s reliance on this statement was not plain error. U.S. v. Holloway, __ F.3d __ (10th Cir. June 20, 2015) No. 14-4164.

8th Circuit upholds sentence despite failure to resolve dispute about gun. (224)(765) Defendant was convicted of two counts of bank robbery, and sentenced to 151 months. The written plea agreement said that the demand note that defendant’s used during one bank robbery mentioned a gun, but defendant said in open court that the note did not include the word “gun.” Despite this, the district court applied a §2B3.1 enhancement based on defendant’s mention of the gun. The Eighth Circuit found that imposing the threat of death enhancement without resolving defendant’s objection was error, but harmless, because the district court departed upward from the guideline range of 84-105 months and imposed a 151-month sentence as if defendant had been a career offender. The court did not rely on its erroneous finding that defendant had made a threat of death. Rather, it found that a series of highly unusual circumstances prevented defendant from qualifying as a career offender, and that the career offender range was more appropriate in light of the section 3553(a) factors. U.S. v. Mitchell, __ F.3d __ (8th Cir. June 8, 2016) No. 15-1761.

6th Circuit upholds PSR’s loss amount where defendant produced no evidence of legitimate business. (219)(765) Defendant was convicted of Medicare fraud charges arising from the operation of Acure Home Care, a fraudulent home health care agency. She challenged on appeal the district court’s monetary loss finding, arguing that the government did not provide sufficient evidence that all of Acure’s Medicare receipts were obtained via fraud. The Sixth Circuit found no clear error. The district court found that the $2.2 million loss figure calculated by the PSR was accurate. Once the court made this finding, the burden was on defendant to prove how much of her business was legitimate. Defendant did not meet this burden, as she neglected provide any evidence. Since defendant did not meet her burden and because the district court’s finding was supported by evidence in the record, the district court’s loss calculation was a “reasonable estimate of the loss.” U.S. v. Meda, __ F.3d __ (6th Cir. Dec. 23, 2015) No. 13-25990.

6th Circuit reverses for failure to resolve defendant’s objections to fraud loss calculation. (219)(765) Defendant was convicted of conspiracy to commit health care fraud. He challenged on appeal the district court’s use of the government’s fraud loss calculation. In its sentencing memorandum and during sentencing, the government contended that defendant had profited $186,775, contrary to the $55,350 it asserted and proved at trial. The government argued that higher amount was based on defendant’s “relevant conduct.” However, in adopting the government’s fraud loss figure of $186,775, the district court failed to make any findings on defendant’s objection to the loss calculation. The Sixth Circuit agreed with defendant that the district court erred in failing to comply with Federal Rule of Criminal Procedure 32(i)(3)(B). Once defendant objected to the government’s fraud loss calculation, the district court was required to explain its factual findings. U.S. v. Shannon, __ F.3d __ (6th Cir. Sept. 1, 2015) No. 14-1727.

1st Circuit says sentencing court could rely on PSR’s facts about attempted burglary. (765) Defendant pled guilty to firearm charges pursuant to a plea agreement that calculated a 24-30 month sentencing range. However, the PSR calculated a range of 37-46 months based on conduct that was not discussed in the plea agreement. The PSR reported that defendant was arrested after police witnessed him fleeing the scene of an attempted burglary with four other individuals. Defendant argued that the district court erred by relying on disputed facts in his PSR to calculate his advisory sentencing range. The First Circuit found no Rule 32 violation and upheld the court’s reliance on the PSR. Defendant never disputed the facts in the PSR. Defense counsel filed a written objection to the PSR’s description of the attempted burglary on the ground that it was “not what [defendant] pled guilty to.” The written objection challenged the corresponding guideline calculations on the ground that they did “not reflect the conduct [defendant] accepted responsibility for.” Thus, defense counsel seemed to object to the use of facts outside of the plea agreement, but at no point did defense counsel directly or specifically challenge any of the facts about the burglary that the report recounted. Moreover, at sentencing, at no point did the defense counsel say anything to challenge the substance of the factual allegations contained in the report. U.S. v. Cirilo, __ F.3d __ (1st Cir. Sept. 24, 2015) No. 14-1793.

5th Circuit upholds increase for number of victims where defendant did not rebut PSR. (218)(765) Defendant participated in a conspiracy to defraud telecommunications companies and service providers. The district court applied a 2-level increase under § 2B1.1(b)(2)(A) for an offense involving 10 or more victims. Defendant argued that the list of victims was inaccurate because it included a large number of businesses of which defendant “had neither involvement nor knowledge, and certainly no control.” The Fifth Circuit upheld the enhancement. Defendant’s PSR identified ten or more victims and the amounts of loss that each suffered as a result of defendant’s actions or omissions or as a result of his complicity in and awareness of the acts or omissions of others. Defendant did not rebut these factual assertions with any evidence regarding the victims identified. U.S. v. Simpson, __ F.3d __ (5th Cir. Aug. 12, 2015) No. 14-10932.

D.C. Circuit rejects challenge to loss calculation that would result in sentence within same guideline range. (219)(765) Defendant, a salaried employee at a non-profit, used his position to pay himself over $110,000 in additional compensation. He challenged the district court’s loss calculation on appeal, contending that the court should have reduced the loss by the fair market value of the services rendered by his companies. The D.C. Circuit found it unnecessary to address this argument, because the district court said it would impose the same sentence even if it accepted defendant’s own loss calculation. Under either calculation, the 24-month sentence was within the guidelines range. It was therefore entitled to a presumption of reasonableness on appeal. Defendant did not rebut this presumption, nor could he. In imposing the sentence, the district court carefully considered the §3553(a) sentencing factors. In particular, it found the offense to be “very serious” in nature because defendant had engaged in a “lengthy and complex” scheme that involved hundreds of discrete acts of embezzlement, abusing the trust of his employer, and concealing his fraudulent conduct even after he was confronted. U.S. v. Kaufman, __ F.3d __ (D.C. Cir. June 23, 2015) No. 14-3041.

8th Circuit reverses upward variance that was based on contested facts in PSR. (742)(765) Defendant pled guilty to possessing an unregistered sawed-off rifle. The district court departed or varied upward from the advisory guidelines range of 70-87 months to the statutory maximum of 120 months. Defendant argued that the district court based its sentence on the clearly erroneous facts of a pending domestic assault charge. The Eighth Circuit agreed, holding that the district court improperly relied on objected-to facts in the PSR. Paragraph 28 of his PSR stated the allegations of charge, and defendant clearly and specifically objected to these allegations. The district court based its sentence on the objected-to facts, stating that the current offense was “an aggravated circumstance between he … and [the girlfriend]. He had abused her before.” This was error. A PSR is not evidence, and not a legally sufficient basis for findings on contested issues of material fact. The error was plain. Defendant’s substantial rights were affected. He was a 21-year-old high-school graduate with a limited criminal record. There was a reasonable probability that but for the unproved allegations, defendant would have received a shorter sentence. U.S. v. Webster, __ F.3d __ (8th Cir. June 12, 2015) No. 14-2822.

1st Circuit says error in considering drug notebook was harmless. (765)(770) Defendant argued that the sentencing court erroneously considered two facts that lacked an adequate basis in the record—that defendant had pointed his gun at an officer, and that a notebook had a record of drug sales. The First Circuit found that the PSR contained a description of defendant pointing his gun at a police officer, and defendant did not file a timely objection, so there was no error as to the gun. With regard to the notebook, however, the sentencing court erred, because the notebook was not part of the record. Nonetheless, the error was harmless. The notebook was “little more than an afterthought in the court’s explication of the sentence. And given the varieties and quantities of drugs contained in the defendant’s backpack, any mention of drug sales in a notebook was obviously cumulative.” Because the district court would have imposed the same sentence had it ignored the notebook, the error was harmless. U.S. v. Fernandez-Garay, __ F.3d __ (1st Cir. May 20, 2015) No. 14-1367.

5th Circuit says court properly relied on prior conviction obtained under alias. (340)(765) Defendant received a 16-level drug trafficking enhancement under §2L1.2(b)(1)(A)(i) based on his prior state conviction for possession for sale of a controlled substance. His PSR listed “Jorge Ortiz” as one of several aliases used by defendant and indicated that defendant had been convicted of the offense in California “using the name Jorge Ortiz.” The district court determined that defendant was convicted in California using an alleged alias, “Jorge Ortiz.” Defendant did not affirmatively deny that he and Jorge Ortiz were one and the same. He argued, though, that the government did not establish with credible documentation the fact that he was the person convicted. The Fifth Circuit found no error. As defendant offered no rebuttal evidence to refute the information contained in the PSR, the district court was free to adopt it without further inquiry. U.S. v. Gomez-Alvarez, __ F.3d __ (5th Cir. Mar. 31, 2015) No. 14-40059.

4th Circuit remands for failure to address scope of jointly undertaken activity. (275)(765) Defendant and his co-defendant ran two drug trafficking organizations in North Carolina. The PSR attributed to defendant 31,111 kilograms of marijuana, which included drug quantities seized from houses operated by drug suppliers in Stokesdale, North Carolina, and Lexington, Kentucky. Defendant objected to including these seized quantities. The government argued that it was reasonably foreseeable to defendant that the Stokesdale and Lexington drug suppliers would possess quantities exceeding the amount defendant attempted to purchase, and the district court agreed. The Fourth Circuit remanded, holding that the court failed to make the necessary factual findings to support its drug-quantity calculations. Foreseeability was not enough; the acts of others can be attributed to a defendant only if those acts were foreseeable to the defendant and were within the scope of jointly undertaken criminal activity. The district court made no findings addressing the scope of the criminal activity defendant agreed to jointly undertake, and the factual recitations in the PSR were insufficient. There was no evidence that defendant and the Stokesdale supplier jointly agreed to operate together for future drug deals. U.S. v. Flores-Alvarado, __ F.3d __ (4th Cir. as amended Mar. 11, 2015) No. 13-4464.

Supreme Court to decide if privilege against self-incrimination applies at sentencing. (765) The government argued that defendant had been a courier for the conspiracy and that her sentence should be calculated based on all the cocaine she carried during the course of the conspiracy. Defendant argued that she should be held accountable only for the cocaine in the three counts to which she pled guilty. The district court, relying partly on defendant’s failure to rebut the government’s evidence at sentencing, held defendant accountable for the larger cocaine quantity. The Supreme Court granted certiorari to decide whether a defendant who pleads guilty and reserves the right to contest the amount of cocaine for which she should be accountable has a Fifth Amendment right to refuse to testify at sentencing on the ground that her testimony would expose her to future prosecution. Mitchell v. U.S. 524 U.S. 925, 118 S.Ct. 2318 (1998) (granting certiorari). (granting certiorari).

1st Circuit holds that defendant waived challenge to dangerous weapon enhancement. (765) Defendant challenged a two-level dangerous weapon enhancement under § 2D1.1(b) (1), arguing that the record did not support it. The First Circuit upheld the enhancement, noting that defense counsel admitted in the district court that defendant possessed firearms during the offense. This constituted a waiver of the claim of error that he now attempted to advance. Moreover the PSR specifically stated that defendant carried and possessed firearms in furtherance of the drug trafficking organization, and defendant did not object to the PSR’s factual account. U.S. v. Murphy-Cordero, 715 F.3d 398 (1st Cir. 2013).

1st Circuit rejects one-sentence explanation that failed to resolve guidelines disputes or state reasons for sentence. (765) At defendant’s sentencing for drug-trafficking offenses, he challenged two enhancements recommended by the probation office, and he argued for a sentence at the low end of the guideline range of 168 to 210 months that would apply if the court did not impose the two enhancements. Without expressly deciding whether the enhancements applied, the court imposed a 210-month sentence. In its one-sentence explanation, the court noted only that it had considered the guidelines and three of the 18 U.S.C. § 3553(a) factors. The First Circuit held that the district court’s failure to explain its guidelines calculation, provide any analysis, or reference any evidence that influenced its decision violated the requirements in 18 U.S.C. § 3553(c) that the court explain its reasons for the sentence imposed and for selecting a sentence within a guidelines range exceeding 24 months. U.S. v. García-Carrasquillo, 483 F.3d 124 (1st Cir. 2007).

1st Circuit says Rule 32(c) did not apply where objection did not go to accuracy of disputed information. (765) Defendant’s objection to paragraph 8 of the PSR was not an objection to the factual accuracy of its contents but to the paragraph’s inclusion in the report. Defendant did not dispute the truth of the statements about weapon possession by a co-defendant, but objected to any mention of those facts in the PSR on the ground that the facts did not pertain to defendant. Because this objection went to the inclusion of the statements and not to their factual accuracy, the First Circuit ruled that the district court was not required by Rule 32(c)(3)(D) to respond to it at sentencing. The court also adequately satisfied Rule 32(c) in resolving defendant’s objection to the PSR’s reference elsewhere to his alleged weapon possession. The court made an implicit finding that defendant did not possess a weapon, and explicitly found that the government could not meet its burden of proof to support a § 2D1.1(b)(1) weapons increase. The court was not required to delete the original reference from the PSR. Once the court complied with Rule 32(c) by resolving the matter in his favor, no more was required. U.S. v. Melendez, 279 F.3d 16 (1st Cir. 2002).

1st Circuit affirms where defendant failed to prove he could not pay fine. 765) The district court levied a $25,000 fine. Defendant claimed that the court failed to fulfill its duty under Rule 32(c)(3)(D) to settle dispute surrounding all facts relevant to his ability to pay the fine. In his sentencing memorandum, defendant had challenged the PSR’s finding that, despite extensive seizures by the government, he had the ability to pay a fine from either remaining assets or possible hidden drug proceeds. The First Circuit found no error, since defendant offered no affirmative evidence to prove that he could not pay the fine. A defendant bears the burden of proving that his case warrants an exception to the rule that a fine be imposed. Where a defendant failed to rebut factual assertions in a PSR, the district court is justified in relying on those assertions. The district court referred to the PSR’s findings regarding defendant’s financial condition at sentencing, and expressly adopted those findings in issuing the judgment. U.S. v. Torres-Otero, 232 F.3d 24 (1st Cir. 2000).

1st Circuit upholds refusal to resolve double counting issue where it did not affect sentence. (765) The PSR attributed to defendant 62 grams of powder cocaine and 770 grams of crack cocaine. Defendant objected at sentencing that some of the powder cocaine had been used to make crack. However, counsel conceded that the calculation would not affect the guideline range, explaining that defendant wanted to preserve the objection in case Congress later reduced the penalties for crack and made the reduced penalties retroactive. The district court declined to resolve the issue on the ground that it had no effect on defendant’s sentence. Defendant argued for the first time on appeal that the double counting issue might have affected her sentence because if the district court had found a lesser quantity of drugs, it might have deemed this a mitigating circumstance not adequately considered by the guidelines and thus warranting a downward departure. The First Circuit termed the argument “silly”; the guidelines specifically prescribe offense levels based on quantity, and defendant’s suggested departure could hardly be a matter not adequately considered by the Sentencing Commissions. U.S. v. Cruz, 213 F.3d 1 (1st Cir. 2000).

1st Circuit directs court to ensure that necessary modifications were made to PSR. (765) The government produced one version of facts at the change of plea hearing. However, the PSR contained a version of the facts that was much more damaging to defendant. Defendant objected, and the district court indicated its awareness of the true facts and stated that it would ignore the unfounded allegations and correct the PSR. However, the court never followed through with its pledge. Accordingly, the First Circuit directed the district court to append an appropriate written statement to the PSR or otherwise ensure that the necessary modifications were made. U.S. v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000).

1st Circuit rejects need for evidentiary hearing before making drug quantity calculations. (765) Defendant argued that the district court erred in making drug quantity calculations without first holding an evidentiary hearing. In his request for a hearing, defendant proposed to take the stand and refute various pieces of trial testimony, and to cross-examine a government witness. In denying the request, the court noted that the witness was vigorously cross-examined at trial, the court already had an opportunity to review the witness’s credibility, and defendant had offered nothing of substance to impugn the specifics of the witness’s account. However, the court said it would consider any relevant affidavits or statements submitted by defendant for sentencing purposes. Defendant submitted two affidavits disputing the trial testimony of various witnesses. The First Circuit rejected the need for an evidentiary hearing to determine drug quantity. Defendant was given his “day in court” when the district court invited the submission of affidavits for sentencing purposes. U.S. v. Rodriguez, 162 F.3d 135 (1st Cir. 1998).

1st Circuit upholds refusal to hold evidentiary hearing on contested portions of PSR. (765) Defendant pled guilty to being a felon in possession of a firearm. The PSR reported, based on an ATF agent’s grand jury testimony that defendant purchased the firearms to arm employees of his drug trafficking business. Defendant challenged this portion of the PSR. Relying on the PSR, the district court enhanced defendant’s sentence under § 2K2.1(b)(5) for possessing the firearms to use in connection with another felony. The First Circuit upheld the district court’s refusal to hold an evidentiary hearing regarding the contested portions of the PSR. Defendant made no proffer regarding any possible, let alone relevant or material, evidence that would be brought forward at an evidentiary hearing. There was no reason to believe that any benefit would derive from convening an evidentiary hearing. In resolving the disputed matter, the district court adequately complied with Rule 32(c)(1). At sentencing, the court gave each party the opportunity to discuss the basis for relying on the ATF agent’s testimony. After both parties were heard, the court ruled that defendant had reason to believe that the weapons would be used in connection with another felony. The court indicated in writing that it adopted the factual findings in the PSR. Thus, the court implicitly resolved the factual dispute. However, the court failed to append to the PSR its determination. U.S. v. Grant, 114 F.3d 323 (1st Cir. 1997).

1st Circuit upholds denial of evidentiary hearing on defendant’s mental state. (765) Defendant argued that the district court erred at sentencing in refusing to permit him to present the testimony of his psychiatrist. The First Circuit held that the court’s denial of an evidentiary hearing on defendant’s mental state was not an abuse of discretion. Defendant did not seek to contradict the factual predicate laid out in his PSR, which described in some detail his psychiatric history and treatment. Also, the testimony that defendant wanted to present would have been cumulative. Finally, there was no reason why the doctor’s testimony could not have been reduced to writing and proffered in the form of a report. A sentencing court has broad discretion in determining whether live testimony is essential. U.S. v. Robles-Torres, 109 F.3d 83 (1st Cir. 1997).

1st Circuit rejects argument that was simply an attempt to dispute the verdict. (765) Defendant argued that the district court violated Rule 32(c)(3)(D) by failing to address his claim that he should have been allowed a mitigating role reduction under § 3B1.2. The First Circuit held that defendant’s argument was an attempt to dispute the legal import of the jury verdict, and did not implicate Rule 32(c)(3)(D). U.S. v. Catucci, 55 F.3d 15 (1st Cir. 1995).

1st Circuit holds that court’s findings satisfied Rule 32(c)(3)(D). (765) Defendant argued that the district court failed to make the necessary findings at sentencing as required by Fed. R. Crim. P. 32(c)(3)(D). The 1st Circuit disagreed. After hearing arguments from both parties regarding the contested matters, the judge sentenced defendant in accordance with the government’s arguments. He then noted that “for the purposes of the record that is my finding with respect to your arguments.” U.S. v. Ovalle-Marquez, 36 F.3d 212 (1st Cir. 1994).

1st Circuit says court should have considered evidence at variance with trial testimony. (765) Defendant complained that the district court erroneously found that, where witnesses’ trial testimony and their other statements on the issue of drug quantity conflict, their trial testimony necessarily controls. Thus, defendant argued, the court failed to consider conflicting evidence offered by the defense. The 1st Circuit agreed that the district court erroneously failed to consider all of the information available to it. Both Fed. R. Crim. P. 32(c)(3)(D) and guideline section 6A1.3 require a sentencing court independently to consider proffered information that is relevant to sentencing. Where drug quantity is an issue, a reviewing court is obligated to consider all available evidence having probative value, including witnesses’ prior inconsistent statements and other proof contradicting their trial testimony. U.S. v. Tavano, 12 F.3d 301 (1st Cir. 1993).

1st Circuit says court resolved disputed factors where it adopted presentence report’s findings. (765) The 1st Circuit affirmed that the district court complied with Fed. R. Crim. P. 32(c)(3)(D), ruling the court made implicit findings on disputed factual questions by accepting the government’s recommendations at sentencing. The judge gave both the prosecutor and defense counsel an opportunity to voice their concerns about the PSI, hearing arguments from both sides about disputed matters. After argument, the judge accepted the government’s sentencing recommendations and then indicated in writing, as part of the judgment, that he had adopted the factual findings in the PSI. This writing satisfied the purposes of Rule 32. U.S. v. Savoie, 985 F.2d 612 (1st Cir. 1993).

1st Circuit finds court resolved drug quantity dispute but failed to attach findings to PSR. (765) The 1st Circuit ruled that the district court resolved defendant’s contention that he was not responsible for certain quantities of heroin seized from a co-conspirator’s residence. The court implicitly adopted the total adjusted offense level proposed in the PSR, except for the two level adjustment for obstruction of justice. The court’s 63-month sentence constituted a rejection of defendant’s contention that he should not be held responsible for more than 26.4 grams of heroin, and a rejection of the government’s argument that defendant was responsible for 100 or more grams of heroin. However, although the district court implicitly resolved the drug quantity dispute, it did not attach a written record of its findings to the presentence report as required by Rule 32(c)(3)(D). The case was remanded with instructions to attach to the presentence report a written record of the court’s findings as to heroin quantity. U.S. v. Cruz, 981 F.2d 613 (1st Cir. 1992).

1st Circuit affirms denial of evidentiary hearing on determination of victim loss. (765) The 1st Circuit held that defendant did not demonstrate that an evidentiary hearing under 6A1.3 would be the only reliable way to resolve the victim loss calculation under section 2F1.1, or that one would be useful. The sentencing judge, having presided at trial, was intimately familiar with the only relevant evidence to which defendant alluded in his hearing request. At no time did defendant identify any evidence which would be presented at a hearing so as to enable the district court to evaluate the usefulness of an evidentiary hearing. Although defendant made the conclusory assertion that he had figures which would establish his entitlement to a victim loss set-off, none were ever submitted, either below or on appeal. U.S. v. Shattuck, 961 F.2d 1012 (1st Cir. 1992).

1st Circuit finds defendant was not entitled to an evidentiary hearing where he did not challenge facts in presentence report. (765) The 1st Circuit rejected defendant’s claim that he was entitled to an evidentiary hearing on his role in the offense. By failing to object to the facts in the presentence report (as opposed to objecting to the interpretation of those facts), defendant obviated the need for an evidentiary hearing. Moreover, because defendant waited until the objections to the presentence report had been resolved and the imposition of sentence was underway before suggesting that evidence be taken, his request was untimely. U.S. v. Garcia, 954 F.2d 12 (1st Cir. 1992).

1st Circuit affirms factual findings where defendant did not object to presentence report. (765) Defendant challenged the district court’s findings that he was involved in alien smuggling. The 1st Circuit affirmed. The relevant information concerning alien smuggling was set out in the presentence report and an INS memorandum made available to defendant during discovery. At sentencing, defendant explicitly stated that he agreed with the facts in the presentence report and was only challenging the district court’s decision to depart upward. U.S. v. Figaro, 935 F.2d 4 (1st Cir. 1991).

1st Circuit upholds denial of right to cross-examine live witnesses at sentencing. (765) Defendants claimed that they were improperly denied the opportunity to cross-examine live witnesses concerning the quantity of cocaine involved in their offense at sentencing. The 1st Circuit upheld the district court’s action. Defendants raised only general objections to the presentence report. They laid no foundation establishing the need for cross- examination of witnesses. They made no effort to interview and record statements by the witnesses, and made no demand that they be produced or subpoenaed. Their request made only on the day of sentencing. The district court’s reliance on the testimony introduced by the government was proper. Each witness had testified under oath, either at trial or before a grand jury, and was corroborated generally by the many witnesses who testified at trial. Moreover, the sentencing judge was also the presiding judge and had the opportunity to make an independent assessment of the credibility of the witnesses. U.S. v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990).

1st Circuit holds that failure to object to information in PSI report precludes claim that it was inaccurate and unreliable. (765) Defendant was convicted of one count of embezzlement after she submitted false loan applications to the bank where she worked. The 1st Circuit held that she could not challenge her guideline sentence as based upon inaccurate and unreliable information because she failed to challenge the PSI report in the district court. Even if she had, the court found that her confessions were reliable as admissions against penal interest. U.S. v. Fox, 889 F.2d 357 (1st Cir. 1989).

2nd Circuit finds court did not improperly apply previous version of PSR. (765) Defendant’s original PSR included a § 2B1.1(b)(11)(C) (i) enhancement for using a means of identification to obtain another means of identification. A few days before sentencing, however, the Probation Office issued a “Second Addendum” to the PSR that dropped the § 2B1.1(b)(11)(C)(i) enhancement, because one of the counts in the group, defendant’s 2008 fraudulent voter registration conviction, was already the basis of an aggravated identity theft conviction under 18 U.S.C. § 1028A. The Second Circuit rejected defendant’s argument that the district court sentenced him on the basis of the first erroneous, PSR, without considering the corrections in the Second Addendum. The court accepted the offense level calculated in the final version of the PSR, and at sentencing, the court referred to the Second Addendum numerous times. Although the court referred to the fact that defendant had “repeatedly” used another man’s identity to obtain fraudulent IDs, it did not improperly apply § 2B1.1(b)(11)(C)(i). U.S. v. Chibuko, 744 F.3d 259 (2d Cir. 2014).

2nd Circuit uses plain error standard to review PSR argument raised first time on appeal. (765) Defendant argued for the first time on appeal that the district court procedurally erred by neglecting to address several of her objections to her PSR, in violation of Rule 32(i)(3)(B). The Second Circuit held that it would review only for plain error where, as here, an appellant asserts that the district court neglected to address an objection to the PSR in violation of Rule 32(i)(3)(B), but fails to raise the issue after the court makes its findings and pronounces the sentence. The requirements of Rule 32(i)(3)(B) are neither novel nor complex. If the defendant or the government believes that a particular factual issue is material, and the district court neglects to address the issue at sentencing, it is not difficult to bring this procedural error to the district court’s attention. Applying a plain error standard to review Rule 32(i)(3) arguments raised for the first time on appeal is consistent with the practice in other circuits. There was no plain error here. U.S. v. Wagner-Dano, 679 F.3d 83 (2d Cir. 2012).

2nd Circuit says waiver barred appeal of procedural errors at sentencing. (765) Defendant’s plea agreement included an appeal-waiver provision that provided that defendant would not file an appeal or otherwise challenge the conviction or sentence if he was sentenced to 195 months or less. The court sentenced him to 157 months. However, the court made no findings of fact about the disputed portions of the PSR and did not append any determinations to the PSR, as required by Fed. R. Crim. P. 32(i)(3)(B)(C). Defendant appealed, arguing that his claim of Rule 32 error should not be foreclosed by his waiver of appeal. The Second Circuit held, as a matter of first impression, that defendant’s waiver of the right to appeal his sentence applied to his claim of Rule 32(i)(3) error. His waiver of the right to challenge his sentence plainly included a waiver of his right to claim errors arising out of the court’s crafting of his sentence. The alleged error did not void the waiver of appeal. U.S. v. Arevalo, 628 F.3d 93 (2d Cir. 2010).

2nd Circuit finds failure to rule on objection was harmless where court would have imposed same sentence. (765) Defendant was convicted of producing child pornography. He argued that the district court violated Rule 32(i)(1) and (3) by failing to rule on his objection to the court’s conclusion that the 2004 version of the Guidelines would have provided a life sentence for defendant’s offense. The Second Circuit found that while the court’s failure to rule on his objection was at least a technical error, the error was harmless, since it was clear it did not affect the sentence imposed. The court’s conclusion that a 30-year sentence was reasonable turned on many factors besides its assessment of the 2004 Guidelines. The court discussed defendant’s additional criminal activity, the “degree or moral outrage, depravity and blatant wickedness the offense would spark in the mind of the average person,” and the particularly strong need to incapacitate defendant in light of his proclivity for disseminating information and advice to other pedophiles and sexual predators via the Internet. In addition, the judge concluded that he couldn’t recall ever having been so disturbed by a case. U.S. v. Gilmore, 599 F.3d 160 (2d Cir. 2010).

2nd Circuit rejects order requiring defendants to meet with probation office and opposing counsel to resolve PSR disputes. (765) Before filing the PSR, the probation reviewed the plea agreement and interviewed defendant in the presence of his counsel. After the probation officer filed the PSR, defendant filed a timely written objection to a proposed sophisticated means enhancement. At sentencing, the district court did not entertain defendant’s objection, referencing a “local procedural guidelines rule.” This “rule” requires a defendant with any objections to the PSR to meet in conference with the probation office between the filing of the PSR and the sentencing hearing to discuss his objections to the PSR. The presentence conference is mandatory, and bars a party from filing a written objection to the PSR unless he has met with opposing counsel and the probation officer to resolve the dispute. The Second Circuit found that the “rule” did not have the force of a local rule, since it was not adopted by a majority of judges following a period of public notice and comment. Rather, it was a “standing order, and was inconsistent with Fed. R. Crim. P. 32(f) and (i). Rule 32(f) governs objections to PSRs, and provides that after receiving objections to the PSR, the probation may meet with the parties to discuss the objections. Rule 32(i)(1)(C) provides that the sentencing must allow the parties’ attorneys to comment on the probation officer’s determinations. The court improperly denied defendant the procedural protections to which he was entitled under Rule 32(f) and (i). On remand, the court must permit defendant to argue his objections to the enhancement and to argue any other objections as may be proper. U.S. v. Cole, 496 F.3d 188 (2d Cir. 2007).

2nd Circuit affirms despite failure to resolve disputed issue where court stated it would have departed to same sentence regardless. (765) Defendant argued against an obstruction of justice increase and in favor of an acceptance of responsibility reduction, which would have resulted in a sentencing range of 292-360 months, rather than the range of 360 months to life found by the district court. Defendant also requested a diminished capacity departure in addition to the cooperation departure sought by the government under § 5K1.1. The district court granted defendant a downward departure for cooperation and imposed a 240-month sentence without ruling on the disputed issues. The court noted that it need not rule on them because the sentence it imposed was already below the range advocated by defendant, and the sentence it imposed would be the same regardless of whether it would grant defendant’s request for a diminished capacity departure. The Second Circuit found that the court’s failure to resolve the disputed issues was not error because it was clear that the court would have imposed the same sentence regardless of its findings on these issue. Disputed sentencing issues need not be resolved whether the sentencing court (i) could, consistent with the guidelines, have imposed the same sentence regardless of the outcome of the dispute, and (ii) indicates that it would have done so. U.S. v. Borrego, 388 F.3d 66 (2d Cir. 2004).

2nd Circuit rejects obstruction increase where court did not resolve dispute or make findings about defendant’s mental state. (765) After being arrested on drug charges, defendant was released on bond in anticipation of his cooperation with the DEA. He maintained regular contact with the DEA for about 2 months, at which point he disappeared. Defendant left the jurisdiction for a short period of time, allegedly to visit his mother. Defendant objected to the PSR’s recommendation that he receive an obstruction of justice increase, explaining that he ceased cooperating with the DEA after he felt he was being put in danger. In response, the government maintained that the agent never placed defendant in harm’s way, and that it was defendant who put himself in danger. The district court did not take any testimony on this matter. It refused to grant the acceptance reduction and instead imposed an obstruction of justice increase. The Second Circuit remanded because the district court did not resolve the dispute or make the necessary finding concerning defendant’s mental state. The only conduct the court identified as obstructive was defendant’s failure to maintain regular contact with the DEA agents and his leaving the jurisdiction. The court could not rely on defendant’s failure to cooperate in another case in which he was not a defendant and the case was not “otherwise closely related.” U.S. v. Brown, 321 F.3d 347 (2d Cir. 2003).

2nd Circuit holds that court’s adoption of PSR’s findings satisfied obligation to make factual findings. (765) Defendant argued that the district court did not make adequate factual findings to support his receipt of a four-point leadership increase under § 3B1.1(a). In order to apply that increase, the court must make two specific factual findings: (1) that defendant was an organizer or leader, and (2) that the criminal activity either involved five or more participants or was “otherwise extensive.” Here, the PSR included a finding that defendant was the leader of a fraudulent scheme and that more than five participants were involved. In its written judgment, the court explicitly “adopt[ed] the factual findings and guidelines application in the presentence report” with the exception of a separate abuse of trust increase. The Second Circuit found that the district court satisfied its obligation to make the requisite factual findings when it indicated in its written judgment that it was adopting the findings in the PSR. U.S. v. Eyman, 313 F.3d 741 (2d Cir. 2002).

2nd Circuit holds that court satisfied obligation to make findings by adopting government’s loss theory. (765) Defendant argued that the court did not make adequate findings to support an enhancement based on a fraud loss of between $2.5 million and $5 million. The Second Circuit held that the district court satisfied its obligations to make factual findings by expressly adopting the position of the government set forth over three sentencing hearing. At those hearings, the government urged that losses resulting from defendant’s criminal activity be calculated under a “market loss” theory. The defense argued that the value of the stock should be based on its intrinsic value, rather than the market price. At defendant’s final sentencing hearing, the judge noted that he had a recent letter from the government, “putting to rest the last [of my concerns], the intrinsic value argument.” He later stated, “[T]he government has made it abundantly clear that [its recommended sentencing enhancement] is a fair and reasonable fraud enhancement, and thus the 13 additional levels are in fact agreed to by the Court.” When asked whether the court’s loss calculation was based on the decline in value in the stock prices set forth in the government’s submissions, the court responded affirmatively. Further, the court noted that, even under defendant’s theory, it could not come up with a number that was less than the $2.5 million threshold. U.S. v. Eyman, 313 F.3d 741 (2d Cir. 2002).

2nd Circuit rejects cross-appeal to avoid appearance of prosecutorial vindictiveness. (765) Defendant’s first PSR combined all of his counts into a single group. Defendant filed objections to the PSR; the government did not. The second PSR contained the same sentencing recommendations as the first, including the same grouping, and stated that government “has no objections to the factual content or guideline computations … in the revised report.” In a sentencing memorandum, the government responded to defendant’s objections and expressly stated that the “grouping determination is not challenged.” However, about a month later, the government withdrew its recommendation for a § 2G2.2(b)(3) enhancement after a defense expert and his agent alleged prosecutorial misconduct. The government then argued for the first time that defendant’s counts should be grouped into five separate groups. The district court ultimately placed defendant’s counts into four different groups. Defendant appealed, and the government cross-appealed the grouping. To avoid the appearance of prosecutorial vindictiveness, the Second Circuit declined to entertain the cross-appeal. “[W]e cannot cleanse this record of the appearance of a radical and belated change in the government’s position as to grouping as a result of a vigorous defense effort to minimize the sentence that appeared to be on the verge of success with regard to the [§ 2G2.2(b)(3)] enhancement. Whether or not the government’s change in position was the result of actual vindictiveness … entertaining the cross-appeal would expose [defendant] to a much greater sentence than would have been imposed had he simply acquiesced in—instead of contesting—PSR #1.” U.S. v. Johnson, 221 F.3d 83 (2d Cir. 2000).

2nd Circuit finds record unclear on whether court applied obstruction enhancement. (765) Defendant challenged his receipt of a two-level obstruction of justice enhancement. The Second Circuit remanded because the record was unclear on whether the court actually imposed the § 3C1.1 enhancement. Defendant’s PSR recommended the enhancement. Although the district court never expressly found that defendant obstructed justice, it adopted most of the PSR’s recommendations. However, although the PSR recommended an offense level of 32; the district court, without explanation, found the offense level was 30. Because the district court failed to explain how it reached the base offense level of 30, it was impossible to conduct meaningful review. Moreover, the record, as it stood now, did not support the enhancement. Because defendant objected to the PSR’s proposed § 3C1.1 enhancement, the district court was required to make specific, clear and reviewable findings as to whether defendant intended to obstruct justice. The district court did not resolve defendant’s challenge and the record did not contain the required findings. U.S. v. Bradbury, 189 F.3d 200 (2d Cir. 1999).

2nd Circuit rules court intended to adopt PSR’s findings on relevant conduct. (765) The Second Circuit ruled that the relevant conduct findings were adequate because the district court intended to adopt the PSR’s findings. The PSR indicated that the total value of the stolen parts possessed by defendant, including the parts he never sold, was $89,640. At sentencing, the district court ruled that it was finding, “based upon relevant conduct in the guidelines, that there was a course of conduct and that it was part of a common scheme to bring it up to the amount that the presentence report indicates, almost $90,000.” Although the court did not explicitly state that it was adopting the PSR, that was the court’s obvious intent. The government proffered, and the PSR suggested, only one factual theory under which defendant could have been held liable for stolen property valued at $89,640. U.S. v. Martin, 157 F.3d 46 (2d Cir. 1998).

2nd Circuit refuses evidentiary hearing where disputed facts were inconsequential. (765) Defendant, a citizen of Germany, made numerous threatening phone calls from Germany to his former girlfriend in the U.S. Several nights after the last of these calls, he was discovered in the woman’s backyard outside her bedroom window, with several items from her home. The Second Circuit found no due process violation in refusing an evidentiary hearing because the disputed facts were either inconsequential or previously admitted by defendant. To the extent defendant denied that he had entered the victim’s house without permission or that the items in his possession belonged to him, the court properly rejected those denials without a hearing. Both facts were elements of the state law crime of which defendant was convicted and were expressly admitted by him. To the extent defendant denied that he “fled” when confronted in the back yard, and that he parked his car two blocks away, these facts were inconsequential. To the extent he claimed he was innocently attempting to retrieve his property, no evidentiary hearing was required. There generally is no hard evidence of intent, and the court could properly infer intent from the undisputed facts. U.S. v. Berndt, 127 F.3d 251 (2d Cir. 1997).

2nd Circuit upholds failure to hold evidentiary hearing on drug quantity. (765) Defendant challenged the district court’s failure to conduct an evidentiary hearing on his challenge to the PSR’s drug quantity recommendation. The Second Circuit held that the court acted within its discretion in sentencing without an evidentiary hearing. Prior to sentencing, defense counsel had requested a hearing to contest the amount of drugs attributed to defendant. However, based on the colloquy at the sentencing hearing, the court was entitled to infer that defendant had abandoned the request and had no witnesses to call. Defendant made no sign that he sought to present any testimony. The court engaged in substantial colloquy with counsel about the disputed issues and then declared that it was prepared to decide. The court announced a decision adverse to defendant and then imposed sentence. Defendant never protested the failure to conduct a hearing. U.S. v. Collado, 106 F.3d 1097 (2d Cir. 1997), overruled on other grounds by U.S. v. Ortiz, 143 F.3d 728 (2d Cir. 1998).

2nd Circuit refuses to require full evidentiary hearing on loss issue. (765) Defendant was convicted of mail and wire fraud. The Second Circuit upheld the district judge refusal to hold a full evidentiary hearing on the amount of damages suffered by defendant’s victims. Neither the due process clause nor the guidelines require a full-blown evidentiary hearing to resolve sentencing disputes. The court is only required to court give the defendant an opportunity to rebut the government’s allegations. Here, defendant was allowed to examine damage witnesses fully at trial. At sentencing, he was allowed to submit written arguments to the court on the amount of loss and to argue the issue orally. Given these indicia of reliability, the use of estimates and hearsay by the government did not require a full‑blown evidentiary hearing. U.S. v. Slevin, 106 F.3d 1086 (2d Cir. 1996).

2nd Circuit says court made adequate drug quantity findings. (765) Defendant contended that the district court failed to make specific factual findings regarding the amount of marijuana attributable to him. The Second Circuit disagreed, holding the findings were adequate and supported by the evidence. The government had contended that defendant was responsible for 100‑400 kilograms of marijuana, while defendant had argued he was only responsible for 10‑20 kilograms. The district court rejected both parties’ contentions and ruled that defendant was accountable for 60‑80 kilograms. There was ample evidence to support a finding that defendant was personally responsible for at least twice that amount. t authorize the court to sentence a defendant meeting its criteria to a sentence below the guidelines range. U.S. v. Thompson, 76 F.3d 442 (2d Cir. 1996).

2nd Circuit says lack of evidentiary hearing was not abuse of discretion. (765) Defendant claimed that the district court erred in denying his request for an evidentiary hearing regarding the § 3B1.1(c) role enhancement. The Second Circuit held that the district court did not abuse its discretion in denying the requested hearing. The court reviewed the legal memoranda of the parties, the grand jury testimony, and an unsworn statement of defendant’s accountant submitted by defendant. At sentencing, the court heard arguments from both parties and listened to a statement by defendant. The court also spoke with the accountant, although it did not place him under oath. The court was not required to place the accountant under oath. The court resolved conflicts between the accountant’s sentencing statements and grand jury statements in favor of the sworn grand jury statement the accountant orally reaffirmed during the sentencing hearing. In light of this, the Second Circuit ruled the court acted properly. U.S. v. Brinkworth, 68 F.3d 633 (2d Cir. 1995).

2nd Circuit remands where court made no findings on role. (765) Over defendants’ objections, the district court imposed a four level leadership enhancement under section 3B1.1(a) on one defendant and a two level minor role reduction under section 3B1.2(b) on another defendant. The 2nd Circuit remanded, because in both cases, the district court made no factual findings. U.S. v. Rosa, 11 F.3d 315 (2nd Cir. 1993).

2nd Circuit finds compliance with Fed. R. Crim. P. 32(c)(3)(D). (765) Defendant argued that in imposing sentence, the district court relied on incorrect information contained in his presentence report and failed to comply with Fed. R. Crim. P. 32(c)(3)(D). The 2nd Circuit found no error, noting that the judge accepted defendant’s characterization of the facts, and complied with Rule 32(c)(3)(D). U.S. v. Bravo, 10 F.3d 79 (2nd Cir. 1993).

2nd Circuit upholds reliance on PSR where defendant failed to object before sentencing. (765) At sentencing, defendant for the first time attacked the reliability of the evidence underlying the enhancements to his sentence. He contended that while the PSR contained allegations from informants that he had committed certain thefts, the PSR did not conclude that defendant committed the thefts and the allegations were not sufficiently reliable to support that conclusion. The 2nd Circuit upheld the consideration of the PSR. There is no requirement that a PSR make findings of fact, rather than simply recite the pertinent information. The court was entitled to consider the statements of absent informants, especially since defendant made no demand that they be summoned for cross-examination. Further, because defendant failed to contest the allegations contained the PSR prior to sentencing, as required by the district court’s scheduling orders, the court was entitled to regard the allegations as true. The consideration of the hearsay evidence did not violate the Confrontation Clause. U.S. v. Streich, 987 F.2d 104 (2nd Cir. 1993).

2nd Circuit remands for explicit findings of ability to import amount under negotiation. (765) Defendant was convicted of conspiring to import and importing heroin. He argued that he should only have been sentenced on the amount he actually imported, since the poor quality of heroin he had previously imported precluded him from importing the additional quantities under negotiation. The 2nd Circuit remanded because the district court failed to make explicit findings of fact. The court appeared to have implicitly accepted the factual findings in the PSR, but this needed to be made explicit. In light of the conflicting evidence, the court was required to make specific affirmative factual findings. U.S. v. Maturo, 982 F.2d 57 (2nd Cir. 1992).

2nd Circuit rules that district judge properly resolved all disputes about presentence report. (765) In a pre-guidelines case, defendant brought a Rule 35 motion to vacate his sentence, claiming that the district court failed to resolve factual disputes. The 2nd Circuit found that the court properly complied with Fed. R. Crim. P. 32(c)(3)(D). Defendant raised only two issues at sentencing and they were fully resolved. However, defendant was entitled to have the presentence report corrected to reflect a more limited time period of his criminal activity, which the government did not oppose. Although defendant challenged other matters in the presentence report, the appellate court refused to consider them since defendant failed to raise them below. U.S. v. Feigenbaum, 962 F.2d 230 (2nd Cir. 1992).

2nd Circuit rules failure to object to drug quantity in presentence report waived challenge. (765) Defendants claimed that it was error to sentence them on the basis of the amount of heroin they negotiated to purchase because they lacked the money to make the purchase. The 2nd Circuit ruled that defendants waived this claim by failing to object to the drug quantity listed in the presentence report. The district court asked defendants whether they disputed any of the findings in the presentence report, and when they declined, the judge adopted the findings of the presentence report. Defendants had the responsibility to advise the judge that there was a question regarding their reasonable capacity to produce a negotiated amount of money or drugs. U.S. v. Caba, 955 F.2d 182 (2nd Cir. 1992).

2nd Circuit remands where court failed to resolve role in offense prior to departing downward. (765) At defendant’s sentencing hearing, the district judge stated his intention to depart downward based upon the low purity of the drugs involved, but there was a dispute concerning defendant’s entitlement to a role in the offense reduction. Because it intended to depart downward, the sentencing court did not believe it needed to resolve the outstanding factual disputes. Starting at an offense level of 30, the minimum sentence was 97 months. The court departed downward to 70 months. However, this 70-month sentence was actually higher than bottom of the applicable guideline range which would have resulted if defendant had received a four-level minimal participant reduction. The 2nd Circuit remanded for resentencing, ruling that the district court should have resolved the factual dispute prior to departing downward. Since the downward departure resulted in a longer sentence than the bottom of the range that would have applied had the sentencing court found in defendant’s favor, a remand was required. U.S. v. Rosado-Ubiera, 947 F.2d 644 (2nd Cir. 1991).

2nd Circuit holds that defendant waived objection by failing to object to presentence report. (765) The defendant argued that the district court should not have considered a state misdemeanor to which he pleaded guilty while in federal custody in computing his criminal history category. However, he failed to object to the probation report and did not otherwise challenge the assigned criminal history category in the district court. The 2nd Circuit held that he therefore waived the contention. The court found that the guidelines were correctly applied in any event. U.S. v. Altman, 901 F.2d 1161 (2nd Cir. 1990).

2nd Circuit holds failure to challenge PSI report precludes challenge to factual basis for obstruction of justice enhancement. (765) A drug defendant claimed for the first time on appeal that he was erroneously subjected to an enhancement for obstruction of justice. He based his claim on allegations that the PSI report confused him with his codefendant, who testified untruthfully during a suppression hearing. Given his failure to object to the PSI report below, the 2nd Circuit held that he had waived the issue. U.S. v. Soliman, 889 F.2d 441 (2nd Cir. 1989).

3rd Circuit reverses where court refused to resolve loss issue. (765) Defendant, a former state senator, was convicted of numerous counts of fraud, tax evasion, and obstruction of justice. The district court excluded from its loss calculation a $150,000 contract awarded to Rubin, the husband of defendant’s aide. The government alleged that Rubin did not perform any services, but defendant provided contrary material at sentencing. The district court declined to rule on the issue of Rubin’s contract, stating that it could not resolve the issue before sentencing “because of the complexity of the Rubin loss argument.” The Third Circuit held that the district court abused its discretion in declining to resolve the loss issue. Rule 32(i)(3)(B) requires a court to rule on any disputed matters at sentencing unless a ruling is unnecessary because the court will not consider the matter. Here, however, the court effectively did resolve the dispute when it treated the loss as $0. A court should not refuse to find or calculate a loss because of the complexity of the dispute or because spending the time to resolve the dispute might delay sentencing. U.S. v. Fumo, 655 F.3d 288 (3d Cir. 2011).

3rd Circuit holds that court properly resolved objections to PSR. (765) At sentencing, defendant’s counsel informed the district court for the first time that his client contested the PSR’s factual findings. After the court asked for defendant’s specific challenges, counsel stated that defendant objected to paragraphs 10-18. These paragraphs described defendant’s relevant conduct to the offense, based on information obtained from government informants, as well as statements defendant made to law enforcement officials. The court acknowledged these objections, but held that “the clear weight of the credible evidence of record supports the finding of the probation officer, especially the admissions of [defendant] to the [DEA].” The Third Circuit held that the district court complied with Rule 32. Defendant first raised his objections to the PSR at the sentencing hearing, and did not explain why he chose to wait until the hearing to do so. Moreover, even assuming that defendant properly raised his objections, the district court fulfilled its obligations under Rule 32(c)(1) by stating that the PSR’s findings were supported by a preponderance of the evidence. U.S. v. Campbell, 295 F.3d 398 (3d Cir. 2002).

3rd Circuit says adoption of the PSR was inadequate to resolve disputed issues. (765) Before the district court, defendants disputed almost all of the factual bases for the calculation of their offense level, including the amount of tax loss. The PSRs did not details how the tax loss was calculated, and the district court’s brief statement that it was adopting the PSRs was inadequate to satisfy Rule 32(c)(1)’s requirements. Although defense counsel stated at sentencing that they would rely on their written objections rather than orally present their arguments, the district court should have made specific findings regarding the disputed facts that were relevant to sentencing. U.S. v. Gricco, 277 F.3d 339 (3d Cir. 2002).

3rd Circuit considers post-appeal sentencing memorandum filed by district court. (765) Defendant argued that the district court failed to make specific findings of fact and resolve disputed issues as required by Rule 32(c)(1). The Third Circuit ruled that in deciding whether the district court complied with Rule 32, it would consider a sentencing memorandum filed by the district court after defendant had appealed his sentence. The memo contained a more comprehensive explanation of the court’s findings and conclusions of law. Rather than adopting a bright-line rule forbidding consideration of any district court opinion filed after a certain date, a court should look to the nature of the supplemental memo and whether its consideration would prejudice defendant. The sentencing memo here was a helpful amplification of the district court’s sentencing decisions and its consideration did not prejudice defendant. The district court did not alter or clarify its rulings or cater to the identity of the panel. The court allowed both parties to submit supplemental briefs to respond to its content. Moreover, the court’s explicit adoption of the factual findings in the PSR, along with its own factual findings and legal conclusions at the sentencing hearing, were sufficient. U.S. v. Bennett, 161 F.3d 171 (3d Cir. 1998).

3rd Circuit upholds drug quantity finding based on uncontroverted matter in PSR. (765) Defendant argued that the government failed to prove by a preponderance of the evidence that 980 grams of heroin were attributable to him. The Third Circuit upheld the drug quantity finding because it was based on an uncontroverted statement in the PSR. Under Rule 32(b)(6)(D), a sentencing court may accept the PSR’s facts as its own. At sentencing, the court asked defendant and his attorney whether they had any objection or comments on the PSR. Counsel responded that they had both reviewed the PSR and it appeared to be correct. The court then adopted the PSR’s factual findings and guideline applications. The information in the PSR contained the requisite indicia of reliability, and the court was justified in relying upon it as well as counsel’s representations as to its accuracy. U.S. v. Haywood, 155 F.3d 674 (3d Cir. 1998).

3rd Circuit says statement that restitution and loss are equitable did not address challenge. (765) Defendant corporation argued that in determining its base fine under § 8C2.3 and § 8C2.4, the district court based the fine on a stipulated amount of restitution when in fact, the restitution was not an accurate reflection of loss. Defendant had challenged the PSR’s use of the stipulated restitution as loss, explaining that the restitution amount inflated the amount of loss because some of the loss figures were double-counted and some of the restitution was being paid in kind rather than in money. The district court rejected that argument, stating only that if the figure was good enough for restitution, than it was good enough for loss. The Third Circuit ruled that this conclusory statement did not sufficiently resolve the issue raised by defendant to constitute a Rule 32 finding. The nature of the finding precluded meaningful appellate review of the issue. The case was remanded. U.S. v. Electrodyne Systems Corporation, 147 F.3d 250 (3d Cir. 1998).

3rd Circuit holds court did not comply with Rule 32(c)(1) in resolving disputed matters. (765) Defendant corporation complained that it made numerous objections to the PSR that the district court did not resolve. The Third Circuit remanded because at best, the record was ambiguous as to the district court’s reliance upon disputed matters, and at worst, reflected a direct conflict with Rule 32(c)(1)’s mandate. After defendant objected to the PSR, the district court rejected some of the objections and then stated that the other objections did not affect its guideline determination. However, the judgment order noted that the court adopted the factual findings and guideline applications in the PSR. U.S. v. Electrodyne Systems Corporation, 147 F.3d 250 (3d Cir. 1998).

3rd Circuit finds compliance with Rule 32 where defendant’s attack was on underlying state conviction. (765) Defendant pled guilty to unlawful flight to avoid prosecution. He argued that the district court violated Rule 32 by not allowing him an adequate opportunity to address alleged factual inaccuracies in the presentence report relating to the underling murder conviction. The 3rd Circuit found no Rule 32 violation. The district court correctly determined that defendant’s document essentially was an attack on his state court murder conviction and an assertion of his innocence of the murder charge. The court properly concluded that the sentencing hearing was not the appropriate forum for attacking the murder conviction, and the challenged facts relating to such conviction were not taken into account in sentencing. U.S. v. Cherry, 10 F.3d 1003 (3rd Cir. 1993).

3rd Circuit holds that despite plea agreement, court was required to determine guideline range. (765) Pursuant to Fed. R. Crim. P. 11(e)(1)(C), the parties agreed that a 228-month sentence was appropriate, including a justifiable departure under § 6B1.2(c)(2). The PSR calculated the guideline range as 151-188 months, while the government calculated the range as 235-293 months. The district court refused to determine which range was appropriate, finding that Fed. R. Crim. P. 32 did not require resolution of issues that would not be material to the sentence imposed. Instead, the court “assumed” the minimum guideline sentence was 235 months, and that if the binding plea agreement, calling for a 228-month sentence represented a downward departure, there were justifiable reasons for it. The 3rd Circuit reversed, finding the court was required to determine the guideline range. Nevertheless, although the court’s error was “plain,” defendant made no showing that it affected substantial rights, and in all likelihood, the court’s “assumption” that defendant’s guideline range was 235-293 months was correct. U.S. v. Carrozza, 4 F.3d 70 (3rd Cir. 1993).

3rd Circuit rules district court did not rely upon disputed amount of loss in pre-guidelines case. (765) In a pre-guidelines case, defendant challenged the presentence report’s determination that the loss caused by his offense totaled $140 million by noting that a civil suit in connection with the matter had been settled for $13 million. The judge declined to resolve the matter, stating that he would not rely upon the $140 million figure at sentencing. Nonetheless, the court rejected a community service sentence because the dimensions of defendant’s fraud and the harm he inflicted were “enormous.” The 3rd Circuit rejected defendant’s claim that the district court relied on the $140 million in sentencing defendant. There was ample evidence in the record which demonstrated that his actions caused substantial financial loss. Defendant conceded that he had agreed to pay $13 million in settlement of a civil suit. U.S. v. Gross, 961 F.2d 1097 (3rd Cir. 1992).

3rd Circuit remands pre-guidelines case where district court failed to comply with Fed. R. Crim. P. 32(c)(3)(D). (765) Defendant contended that the district court did not comply with Fed. R. Crim. P. 32(c)(3)(D) because it failed to resolve or expressly disclaim reliance upon disputed matters in the presentence report. Defendant had objected to the fact that the victim impact statement improperly referred to him as a thief when his embezzlement convictions had been overturned. Defendant had also objected to the Probation Office’s estimate of when he would be eligible for parole and what his sentence would be if the sentencing guidelines were applicable. The 3rd Circuit agreed that the district court had failed to comply with Rule 32(c)(3)(D). Even though the district court characterized defendant’s objections to the report as “arguments” it was required to either resolve the factual dispute at the core of the argument or expressly disclaim reliance upon those disputed facts. U.S. v. Furst, 918 F.2d 400 (3rd Cir. 1990).

3rd Circuit holds that court must resolve disputed issues in government’s version of events in presentence report. (765) Rule 32(c)(3)(D) Fed.R.Crim.P., requires the sentencing court to resolve factual disputes or expressly disavow reliance on the disputed information. The 3rd Circuit held that this applies not only to information the presentence report presents as fact, but also to allegations in the government’s version of the offense which the government believes to be fact. Since the district court did not resolve or disavow the disputed factual issues, the sentence was vacated and the case remanded for resentencing. U.S. v. Rosa, (Appeals of Kostruck, Romano and Perrino), 891 F.2d 1063 (3rd Cir. 1989).

4th Circuit holds that findings as to amount of fraud loss were inadequate. (765) Defendants planned and perpetrated an elaborate fraud scheme through which they improperly obtained tens of thousands of dollars from North Carolina’s Medicaid program. At sentencing, defendant unsuccessfully sought to exclude about $82,000 in lease transactions from his fraud loss calculation. He contended that the court failed to find that he directly participated in the lease transaction or that those transactions were in furtherance of jointly undertaken criminal activity. The Fourth Circuit agreed that the court’s findings were inadequate. The fact that defendant was convicted of conspiracy to commit mail and wire fraud, which included the lease transactions, did not necessarily mandate a finding that the losses from those transactions constituted relevant conduct. Notwithstanding the verdict, the court was obliged to make individualized on fraud loss. The government also argued that the lease transactions were attributable to defendant under the second prong of § 1B1.3(a)(1), i.e. that they were reasonably foreseeable and “in furtherance of the jointly undertaken criminal activity.” However, neither the PSR nor the court make findings on the scope of the criminal activity defendant agreed to jointly undertake, or whether all the lease transactions were reasonably foreseeable. U.S. v. Bolden, 325 F.3d 471 (4th Cir. 2003).

4th Circuit holds that acquittal did not bar defendants from offering rebuttal evidence. (765) Defendants, officers of the United Way of America, were originally convicted of fraud, money laundering, and tax evasion stemming from their improper use of UWA money. They had also been charged with defrauding PUI, a support organization related to UWA. However, they successfully moved for judgments of acquittal on the PUI counts at the close of the government’s case-in-chief. They contended that the PUI losses should not have been counted as relevant conduct because their judgments of acquittal at the close of the government’s case-in-chief effectively precluded them from rebutting their PSRs’ findings detailing the frauds against PUI. These findings were based upon evidence presented at trial during the government’s case-in-chief. The Fourth Circuit held that defendants had ample opportunities to submit rebuttal evidence. First, they had the opportunity to object to all of the factual findings in their PSRs, and to submit any rebuttal evidence they wanted the court to consider. Second, neither defendant proffered any rebuttal evidence at their respective sentencing hearings. U.S. v. Aramony, 166 F.3d 655 (4th Cir. 1999).

4th Circuit rules court did not make sufficient drug quantity findings. (765) Defendant was convicted of conspiring to distribute crack and related charges. He challenged the district court’s conclusion, made without factual findings, that he was accountable for over 13,000 kilograms of marijuana equivalent. Arresting police only found the equivalent of about 58 kilograms of marijuana. The Fourth Circuit remanded because the court did not adopt the PSR’s finding and did not make sufficiently detailed independent findings on the drug quantity issue. The PSR based its drug quantity recommendation on “an unprotected statement” given out-of-court by a co-conspirator detailing defendant’s drug activities in Pennsylvania and North Carolina. However, the district court stated that its finding was based on its recollection of trial and a review of its notes. Because the court expressly relied on factual predicates that differed from the underlying findings in the PSR, the district court did not adopt the findings of the PSR, either expressly or implicitly. Without being able to rely on the factual findings in the PSR and lacking specific findings by the district court, it was impossible for the appellate court to review the district court’s quantity findings. U.S. v. Williams, 152 F.3d 294 (4th Cir. 1998).

4th Circuit upholds court’s refusal to consider defendant’s late objections to PSR. (765) Defendant argued that the district court violated Rule 32 by refusing to consider his objections to the PSR. The Fourth Circuit held that the court properly exercised its discretion under Rule 32(c)(3)(A) in refusing to consider defendant’s late objections. At his November 1993 arraignment, defendant was informed that he would be sentenced March 1994 and that all objections to the PSR had to be filed in writing within 15 days of receipt of the PSR. Defendant did not raise any objections to his PSR until the day of sentencing and then only orally. Defendant reviewed and discussed the PSR with his attorney, and declined the opportunity to meet with the probation officer who prepared the report. Moreover, the trial judge gave defendant “an opportunity to comment,” as required at the time by Rule 32(a)(1), by filing written objections within 15 days of the report. Defendant was allowed to speak at sentencing regarding the report. Thus, the court complied with all the requirements of Rule 32 in sentencing defendant. The district court’s imposition of a 15-day time limit in which to file objections, pursuant to the local rule, was permissible. U.S. v. Morsley, 64 F.3d 907 (4th Cir. 1995).

4th Circuit says court may make factual findings by adopting facts in PSR. (765) Defendant, who was HIV positive, bit two correctional officers during an altercation at a prison. He was convicted of assault with a dangerous weapon. The district court enhanced his sentence for obstruction of justice based on his trial testimony that he was unaware of his HIV positive status before the incident. The Fourth Circuit affirmed, finding that the district court’s adoption of the factual findings in the PSR satisfied its obligations to make independent findings of fact regarding defendant’s knowledge of his HIV status. U.S. v. Sturgis, 48 F.3d 784 (4th Cir. 1995).

4th Circuit holds that court properly resolved defendant’s objections by adopting PSR. (765) Defendant argued that the district court violated Rule 32(c)(3)(D) by failing to address his objections to the PSR’s recommendation against a reduction for acceptance of responsibility. The 4th Circuit held that the court satisfied Rule 32(c)(3)(D) by adopting the PSR. A court may comply with Rule 32(c)(3)(D)l by adopting the findings in the PSR, provided the court makes clear which disputed issues were resolved by its adoption. In such a situation, the appellate court can discern the factual bases for the court’s sentencing rulings and can perform meaningful appellate review. Here, the district court overruled defendant’s objections to the PSR and sentenced defendant consistently with the PSR’s recommendation, with the exception that it did not grant an upward departure. It was self-evident that, in expressly overruling defendant’s objections to the PSR, the court was adopting the controverted PSR findings. U.S. v. Walker, 29 F.3d 908 (4th Cir. 1994).

4th Circuit remands where court made no findings concerning defendants’ objections to PSR. (765) Defendants claimed that each of them raised specific objections to the presentence report that either were not resolved or received only cursory treatment by the district court. The 4th Circuit remanded the cases of two of the defendants, since the district court made no findings concerning their presentence report objections. Although these two defendants were “the worst kind of drug offenders,” the principles of sentencing “are not variable.” The court’s factual findings concerning the objections of the other three defendants were minimally sufficient. U.S. v. McManus, 23 F.3d 878 (4th Cir. 1994).

4th Circuit remands to attach court’s ruling that it did not rely on disputed factor. (765) In a pre-guidelines case, defendant argued that the district court violated Fed. R. Crim. P. 32(c)(3)(D) by failing to append to his PSR its determination not to rely on a contested drug equivalency in sentencing him. The 4th Circuit agreed that this should have been done, but the remedy was simply a remand for attachment of the court’s determination not to rely on the disputed information and transmission of the revised report to the Bureau of Prisons and the Parole Board. U.S. v. Daniel, 3 F.3d 775 (4th Cir. 1993).

4th Circuit rejects claim that evidence of additional drug deal at sentencing was vindictive. (765) At defendant’s sentencing hearing, a government witness testified about defendant’s involvement in cocaine transactions that had not been mentioned at trial. The sentencing hearing was necessary because defendant challenged the findings in the presentence report. Defendant contended that she would not have faced the additional testimony had she not exercised her right to challenge the presentence report. Hence, she argued that the government’s response to her challenge (bringing additional evidence to refute the challenge), constituted a vindictive attempt to chill her initiative. The 4th Circuit found no merit to the argument. Once issues in the presentence report are brought into dispute, both sides are free to present any relevant evidence to resolve the dispute. The convening of the post-trial sentencing hearing failed to create a “reasonable likelihood” that the government acted vindictively merely by following the procedures set forth in the guidelines. U.S. v. Mabry, 953 F.2d 127 (4th Cir. 1991).

4th Circuit rules court’s adoption of presentence report did not resolve disputed facts. (765) Defendant objected to two findings in his presentence report: his use of a firearm and the quantity of drugs on which he should be sentenced. The district court expressly resolved the firearm question against defendant, but did not make a finding with respect to drug quantity. The court did, however, state that he accepted the presentence report “in toto.” The 4th Circuit remanded for resentencing after finding that the district court failed to adequately resolve defendant’s objection concerning drug quantity as required by Fed. R. Crim P. 32. The general adoption of the presentence report was insufficient to satisfy Rule 32. “While such an adoption of the presentence report may constitute a sufficient finding under Rule 32(c)(3)(D) when the context of the ruling makes clear that the district court intended to rule on each of the alleged factual inaccuracies, on this record we cannot determine whether the district court intended its ruling to apply to both of [defendant’s] objections or only to the possession of the firearm issue.” U.S. v. Morgan, 936 F.2d 1561 (4th Cir. 1991).

4th Circuit holds factual findings relevant to sentencing are not limited to those set forth in the presentence report once the defendant objects to the report. (765) Defendant pled guilty to conspiracy to distribute cocaine and possessing a firearm during an attempt to acquire cocaine. The presentence report asserted he was responsible for 21 kilos of cocaine. The government adopted the PSI report, but the defendant objected to it, asserting that he was responsible for no more than 10 kilos. At the sentencing hearing, he admitted on direct examination that he was responsible for 13 kilos of cocaine in August 1987. On cross examination, he admitted responsibility for another 2 kilos during that month, but recanted his testimony on redirect. The district court found he was responsible for a minimum of 15 kilos. Defendant appealed, claiming that it was error for the court to rely on his admissions concerning the August 1987 transactions when the PSI report was silent and the government did not object to the report. The 4th Circuit disagreed, holding that once the defendant objected to the PSI report, the government was free to rely upon facts not mentioned in the report. The defendant put the amount of cocaine in issue, and therefore the parties were free to present evidence concerning it to the sentencing court. The district court’s findings were not clearly erroneous. U.S. v. Wilson, 896 F.2d 856 (4th Cir. 1990).

5th Circuit reverses incorrect calculation of criminal history. (765) The district court added two points to defendant’s criminal history for committing the current offense while on probation for a 2005 offense, even though the court had separately found that the government had not linked him to the 2005 offense. The government conceded the error, but contended that reversal was not warranted because defendant’s 30-month sentence still fell within the properly calculated guideline range of 24-30 months. The Fifth Circuit found that the improper calculation of the Guidelines range was a procedural error which was not harmless. The panel was not convinced that the district court would have imposed the same sentence absent the Guidelines error. The court specifically noted that it found “a fair and reasonable sentence to be at the bottom of the guidelines, 30 months incarceration.” Thus, it appeared that the court consciously selected from the low end of what it believed to be the available range. U.S. v. Delgado-Martinez, 564 F.3d 750 (5th Cir. 2009).

5th Circuit says court properly attached ruling to PSR. (765) Defendant challenged a conclusion in his PSR that he engaged in chat room activity with 13- to 14-year-old girls. He further claimed that the probation officer failed to amend the PSR after the district court ordered him to do so. Although the information did not increase his sentence, defendant argued that it was prejudicial because agencies such as the Bureau of Prisons rely on the PSR. The Fifth Circuit found no error. Defendant’s contention that the PSR was inaccurate was without merit. It did not unequivocally state that defendant sought chat sessions or chatted with young girls. Nevertheless, the court agreed to amend the paragraph at issue to reflect that defendant was only searching profiles of young girls. To the extent that defendant complained that the PSR was not amended as ordered, actual amendment was not required. When a court resolves disputed facts, the ruling is to be attached to any copy of the PSR provided to the Bureau of Prisons. This procedure was employed here. U.S. v. Buchanan, 485 F.3d 274 (5th Cir. 2007).

5th Circuit says Rule 32 only requires findings on timely objections. (765) Defendant filed timely objections to the PSR, claiming that it overvalued a hotel he owned because the hotel was community property. On the day of the sentencing hearing, he filed supplemental objections to the PSR. He did not provide an explanation for the late submission of these objections. Included in the objections was a claim that three homes listed in the PSR were overvalued because they were community property. However, he did not present any evidence of this. He also asserted that the PSR overvalued the hotel because it was subject to a mortgage. The judge refused to consider the supplemental objections. Defendant argued that Rule 32(c)(1) required the district court to make a finding on his untimely objections to a PSR. The Fifth Circuit disagreed, ruling that Rule 32(c)(1) only requires the district court to make findings on timely objections and on objections that it considers in its discretion. Rule 32(b)(6)(B)’s deadline for objections and Rule 32(b)(6)(D)’s grant of discretion to allow a new objection to be raised at any time would be meaningless if the court were obliged to entertain new objections at the sentencing hearing. Moreover, defendant failed to show good cause to justify even discretionary consideration of his supplemental objections. U.S. v. Chung, 261 F.3d 536 (5th Cir. 2001).

5th Circuit finds no Rule 32 violation where defendant abandoned objection at sentencing. (765) Defendant argued that he objected to the PSR’s statement that he stole 100 motor homes, and thus the district court violated Rule 32 when it failed to resolve this disputed issue or state that the disputed issue would not be taken into account. The Fifth Circuit found no Rule 32 violation because defendant abandoned his objection to the 100 stolen motor homes question. While considering defendant’s objection to a § 2B1.1(b)(4)(B) enhancement for being “in the business” of buying and selling stolen goods, the court questioned defendant about the PSR’s statement that he had stolen 100 motor homes. Although defendant denied stealing 100 motor homes, he also stated that it was irrelevant to his argument, since the enhancement did not apply to thieves who merely sell the property that they have stolen. Since the objection was removed, the factual matter was no longer in controversy and the district court was not required to make a specific finding as to whether defendant stole 100 motor homes. U.S. v. Myers, 198 F.3d 160 (5th Cir. 1999).

5th Circuit says court made implicit findings by adopting PSR. (765) At sentencing, defendant argued that contrary to the PSR, he was not a “right-hand man” to various drug brokers, but had a minor role because he only provided the stash house for the marijuana. The district court denied this objection and the request for a minor role reduction. Defendant claimed that the district court failed to articulate the basis for its finding. The Fifth Circuit held that the district court made the necessary findings by adopting the PSR. Although a court must “state for the record the factual basis upon which it concludes that a requested reduction for minor participation is, or is not appropriate,” a court need not make a “catechistic regurgitation of each fact determined” and may make implicit findings by adopting the PSR. In the present case, the judge stated at the sentencing hearing and in the signed judgment that he agreed with and adopted the factual findings in defendant’s PSR. U.S. v. Gallardo-Trapero, 185 F.3d 307 (5th Cir. 1999).

5th Circuit says defendant did not present adequate rebuttal evidence. (765) As officers were leading defendant into a police storefront, defendant ran from them. Based on defendant’s flight, his PSR recommended an obstruction of justice enhancement. The district court applied the enhancement over defendant’s objection. Although a district court must resolve disputed issues of fact if it intends to use those facts at sentencing, the court can adopt facts from a PSR without inquiry, if those facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence. A defendant’s rebuttal evidence must demonstrate that the information contained in the PSR is materially untrue, inaccurate or unreliable, and mere objections do not suffice as competent rebuttal evidence. Defendant’s written but unsworn objection to the PSR stated only that “the defendant does not concede that he attempted to flee.” At sentencing, defense counsel asserted that defendant had not fled and requested that the government to produce witnesses who would substantiate the PSR’s assertion that defendant had run from police. Because defendant failed to proffer adequate rebuttal evidence, the Fifth Circuit held that the district court did not err in relying on the factual information provided by the PSR. U.S. v. Huerta, 182 F.3d 361 (5th Cir. 1999).

5th Circuit holds that adoption of PSR satisfied Rule 32(c)(1). (765) Defendant objected to the PSR’s attributing at least 150 kilograms of cocaine to him. The judge overruled his objections, stating that the preponderance of the evidence supported the PSR’s findings, and that defendant’s history of involvement with cocaine corroborated those calculations. The Fifth Circuit ruled that the court’s disposition of defendant’s objection was adequate to comply with Rule 32(c)(1). A judge may satisfy Rule 32(c)(1) by rejecting defendant’s objection and adopting the PSR’s findings. U.S. v. Medina, 161 F.3d 867 (5th Cir. 1998).

5th Circuit says bare objection to PSR was not sufficient to require additional evidence. (765) Defendant’s PSR reported that he was a career offender based on a 1986 bank robbery conviction and a 1991 aggravated battery conviction. Defendant objected to the career offender classification, but offered nothing to indicate that the reported criminal history was inaccurate. The Fifth Circuit ruled that the government was not required to present any additional proof since defendant did not present any evidence that the PSR was erroneous. A district court is entitled to rely entirely upon the facts contained in a PSR, even if a defendant objects to those facts, if the defendant does not present any rebuttal evidence. The defendant must show the evidence on which the district court relied at sentencing was materially untrue. U.S. v. Millsaps, 157 F.3d 989 (5th Cir. 1998).

5th Circuit holds that by adopting PSR, court implicitly found defendant knew about firearm. (765) Defendant pled guilty to drug charges. The district court applied a § 2D1.1(b)(1) enhancement based on a loaded semi-automatic rifle under defendant’s bed. Defendant claimed he had no knowledge of the rifle, but the court made no explicit finding that defendant possessed or knew of the rifle. The Fifth Circuit held that the court’s adoption of the PSR was an implicit finding that defendant knew about, and possessed, the rifle during the course of the conspiracy. The part of the PSR referred to by the court provided a sufficiently clear factual basis for the enhancement. U.S. v. Myers, 150 F.3d 459 (5th Cir. 1998), abrogated on other grounds by U.S. v. Reyna, 358 F.3d 344 (5th Cir. 2004).

5th Circuit upholds tax loss where defendants offered no evidence to rebut IRS agent’s testimony. (765) Defendants operated an organization that created and sold an “untax package,” which purported to teach people how to remove themselves from the federal tax system. They were convicted of aiding and abetting the filing of fraudulent tax forms. The PSR stated that one defendant could reasonably foresee almost $15 million in tax loss, while the other defendant could reasonably foresee about $14 million in tax loss. Defendants objected to these amounts. In response to their objections, the government presented the testimony of an IRS agent to explain how the IRS calculated the estimated loss figures provided to the probation officer. Following extensive cross-examination by all defendants, the district court found that the testimony established the foreseeable tax harm by a preponderance of the evidence. The Fifth Circuit found no error in the court’s use of the PSR’s figures, since defendants did not introduce any evidence to contradict the IRS’s agent’s testimony or rebut the probation officer’s loss computation. U.S. v. Clark, 139 F.3d 485 (5th Cir. 1998).

5th Circuit relies on facts in PSR for § 3C1.2 reckless endangerment enhancement. (765) The PSR said that defendant initiated a high speed chase for several miles and attempted to hit one of the patrol units as he was driving in the middle of the road, causing oncoming traffic to get off the roadway. At sentencing, defense counsel objected to the PSR’s § 3C1.2 enhancement for reckless endangerment during flight, and asked that the contrary facts set out in defendant’s written objection to the PSR be accepted as a proffer. The court accepted the proffer of facts as evidence, and defense counsel did not ask for an evidentiary hearing or the opportunity to put defendant on the stand. The court then denied defendant’s objection to the § 3C1.2 enhancement, and the Fifth Circuit affirmed. The district court properly found the facts in the PSR more reliable than those proffered by defendant. It is true that when a defendant objects to particular findings in the PSR, the court must resolve the disputed issues of fact if it intends to use those facts as a basis for its sentence. However the court did so here. U.S. v. Reyna, 130 F.3d 104 (5th Cir. 1997).

5th Circuit finds more than minimal planning where defendant did not rebut PSR. (765) Defendant challenged an enhancement for more than minimal planning, under § 2A2.2(b)(1). The Fifth Circuit affirmed, given the information in the PSR, and defendant’s failure to rebut that information. A court is free to adopt facts in the PSR without further inquiry if those facts have an adequate evidentiary basis and the defendant does not present evidence to refute them. U.S. v. Hodges, 110 F.3d 250 (5th Cir. 1997).

5th Circuit upholds use of PSR’s figures where defendant did not rebut the evidence. (765) Defendant contested the PSR’s finding that the extent of his check fraud scheme totaled $193,696.34, which was substantially more than the $24,129.46 for which he was convicted. The Fifth Circuit affirmed. It was reasonable for the district court to consider the PSR’s factual findings, and defendant offered no evidence to rebut the PSR’s findings. U.S. v. Route, 104 F.3d 59 (5th Cir. 1997).

5th Circuit holds that adoption of PSR resolved factual dispute regarding restitution. (765) Defendant challenged a $111,008 restitution order, arguing that the court failed to resolve all factual disputes regarding the amount of restitution, failed to consider his indigence, and incorrectly held him jointly and severally liable for the entire amount of loss. The Fifth Circuit disagreed. The factual findings by the district court were sufficient because the court adopted the findings of the PSR, which expressly evaluated defendant’s financial condition. As a participant in the conspiracy, defendant was legally liable for all the actions of his co‑conspirators in furtherance of the crime. U.S. v. Ismoila, 100 F.3d 380 (5th Cir. 1996).

5th Circuit holds that court made adequate findings of drug quantity. (765) Defendants argued that the district court failed to make adequate findings regarding the quantity of drugs attributable to them as required by Fed. R. Crim. P. 32(c)(1). The Fifth Circuit held that the court’s adoption of the PSR and its finding by a preponderance of the evidence that the conspiracy involved at least 1500 kilograms of cocaine satisfied the rule. Rule 32 does not require a catechismic regurgitation of each fact determined and each fact rejected. U.S. v. Gaytan, 74 F.3d 545 (5th Cir. 1996).

5th Circuit says objection based on acquittal was not factual dispute with presentence report. (765) Defendant objected to the PSR’s recommendation that she receive a § 2D1.1-(b)(1) enhancement. Her objection was based on her acquittal on charges of using or carrying a firearm during a drug-trafficking crime. The Fifth Circuit found that this objection did not create a factual dispute with the presentence report’s finding that defendant possessed a firearm under § 2D1.1(b)(1). The district court adopted the findings in the presentence report. Without a specific factual controversy, further factual findings under Fed. R. Crim. P. 32(c)(3)(D) were not required. U.S. v. Buchanan, 70 F.3d 818 (5th Cir. 1995).

5th Circuit finds that defendant’s comments at sentencing did not place issue in controversy. (765) Defendant failed to appear for a sentencing hearing on drug charges. After he was apprehended, the probation officer recommended an obstruction of justice enhancement based on his failure to appear. Defendant made only one unrelated objection to the PSR. However, at sentencing, he said he had been told that if he paid the $25,000 bond to his bail bond company, he did not have to appear for sentencing. The district court then sentenced defendant in accordance with the PSR. Defendant argued that his comments at sentencing placed the willfulness of his obstructive conduct in controversy so as to require findings under Rule 32. The Fifth Circuit disagreed, holding that a Rule 32 finding was not required because defendant never raised a general or specific objection to the obstruction of justice enhancement. Rule 32 contemplates an objection to place a fact or conclusion in the PSR into controversy. Because no such objection was made, the district court was not required to make a specific finding as to defendant’s willfulness. U.S. v. Esqueda-Moreno, 56 F.3d 578 (5th Cir. 1995).

5th Circuit does not require court to redact disputed factual allegations in PSR. (765) Defendant argued that the district court erred by not redacting disputed factual allegations in the PSR. The Fifth Circuit found that the court complied with Fed. R. Crim. P. 32(c)(3)(D) by formally stating during sentencing that it had not factored the disputed facts into the sentence and ordering a copy of the sentencing transcript to accompany the presentence report made available to the Bureau of Prisons. U.S. v. Okoronkwo, 46 F.3d 426 (5th Cir. 1995).

5th Circuit relies on PSR’s conclusion that apartment where drugs were found was defendant’s. (765) Defendant’s PSR held him accountable for drugs found in his apartment. Defendant objected, claiming that the apartment belonged to someone he was visiting at the time of his arrest. In response, the PSR stated that the Department of Public Safety had recently changed defendant’s address to this apartment. The district court relied on the PSR. The Fifth Circuit held that the information on which the district court relied had sufficient indicia of reliability to support its probable accuracy. Although no testimony was presented on the issue of the apartment, defendant never requested an evidentiary hearing and did not show that the PSR’s information was untrue. U.S. v. Valencia, 44 F.3d 269 (5th Cir. 1995).

5th Circuit finds defendant failed to establish prejudice from counsel’s failure to challenge use of PSR. (765) n a § 2255 motion, defendant contended that his appellate counsel provided ineffective assistance by failing to appeal the denial of his motion for a sentencing hearing and failing to challenge the district court’s reliance on information in the PSR. The Fifth Circuit held that defendant failed to show prejudice under Strickland v. Washington, 466 U.S. 668 (1984). Although defendant challenged the reliability of the information in the PSR, he never provided the district court with any evidence supporting his bald allegations. The district court did not abuse its discretion in denying the requested evidentiary hearing. Moreover, in the absence of rebuttal information, the district court did not err in relying on the information in the PSR. Finally, defendant received a copy of the PSR, and thus had adequate notice of the information that the district court intended to rely on to determine his sentence. U.S. v. Patten, 40 F.3d 774 (5th Cir. 1994).

5th Circuit says adoption of PSR not sufficient because it did not make foreseeability finding. (765) Defendant argued that the district court erred by failing to make express findings regarding the quantity of crack attributable to him for sentencing purposes. The government claimed that the district court’s findings were adequate because the court implicitly adopted the findings of the PSR. The 5th Circuit found that even if the court did adopt the PSR’s findings on the drug quantity involved in the conspiracy, this was insufficient because the PSR did not address reasonable foreseeability. U.S. v. Foy, 28 F.3d 464 (5th Cir. 1994).

5th Circuit says failure to resolve leadership issue was harmless because defendant received statutory minimum sentence. (765) Defendant argued that the district court failed to resolve the contested issue of his leadership role in a conspiracy. The 5th Circuit found that any error was harmless since defendant received the statutory minimum sentence. Defense counsel told the court at sentencing that defendant did not wish to pursue the matter because it would not affect his sentence. Without the enhancement, defendant would have had a guideline range of 78 to 97 months; with the enhancement, his sentencing range was 97 to 121 months. Because of the mandatory minimum sentence of 120 months, the district court calculated defendant’s sentencing range to be 120 to 121 months. The court imposed a 120-month sentence. If the court had rejected the leadership increase, the only effect would have been to nullify the court’s already limited choice of sentencing range. Defendant would have received the same sentence. U.S. v. Carrillo-Morales, 27 F.3d 1054 (5th Cir. 1994).

5th Circuit adopts PSR’s conclusion that defendant could foresee all marijuana in conspiracy. (765) The district court adopted the PSR’s conclusion that defendant was responsible for 4,046 kilograms of marijuana, the total quantity distributed by the conspiracy in which she was involved. The 5th Circuit affirmed. The PSR expressly found that defendant could reasonably foresee the entire amount of drugs trafficked by the conspiracy, and the district court underscored this finding, stating that all five of the defendants could have foreseen the actions of the other conspirators. This conclusion was reasonable, given that the conspiracy was a family organization, run by defendant and her sisters, each of whom had an intimate understanding of the operation. U.S. v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).

5th Circuit holds that Rule 32 was satisfied where court explained basis for adopting PSR. (765) Defendant argued that the district court erred by failing to make a specific finding regarding the amount of marijuana foreseeable to her. The 5th Circuit held that the district court satisfied Rule 32. The court expressly adopted the facts in the PSR. After defense counsel questioned the factual basis for the PSR’s calculation of the amount of marijuana attributable to defendant, the court explained that its decision to adopt the PSR’s determination was based on the court’s assessment of the testimony presented by the government. In so doing, the court resolved the sole factual issue from the PSR which was contested by defendant, thus satisfying Rule 32. U.S. v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).

5th Circuit finds that district court did not merely rely on assertions in PSR. (765) Defendant argued that the district court erred by accepting the assertions in the PSR regarding the quantity of marijuana for which she was responsible. The 5th Circuit found this claim was without merit. At the sentencing hearing, in response to an objection by defendant’s counsel, the court stated explicitly that it had not merely accepted the assertions of the probation officer. The court explained that it based its decision to overrule defendant’s objections and adopt the PSR on testimony the court heard from the witness stand. U.S. v. Puig-Infante, 19 F.3d 929 (5th Cir. 1994).

5th Circuit finds court properly resolved defendant’s objection to foreseeability determination. (765) Defendant objected to the PSR’s conclusion that he was responsible for all the marijuana distributed by the conspiracy. The district court held an evidentiary hearing and credited the testimony of a police officer in rejecting defendant’s objection. Defendant argued that Fed. R. Crim. P. 32(c)(3)(D) required the district court specifically to find that the amount of marijuana in his PSR was reasonably foreseeable. The 5th Circuit affirmed, ruling that by specifically crediting the police officer’s testimony, the district court adopted the officer’s conclusion regarding defendant’s ability to foresee the transportation, storage and sale of marijuana of the entire conspiracy. This specific rejection of defendant’s objection to the amount of marijuana charged in the PSR satisfied Rule 32. U.S. v. Golden, 17 F.3d 735 (5th Cir. 1994).

5th Circuit holds that adoption of PSR did not satisfy Rule 32. (765) Defendant argued that the district court erred in failing to make explicit findings as to how it calculated the drug quantities attributed to him. The 5th Circuit agreed that the court’s adoption of the PSR was insufficient to satisfy Rule 32. Rule 32 requires the sentencing court to make findings regarding any controverted facts in the PSR, or state that those facts will not be taken into account in sentencing. The adoption of the PSR can satisfy Rule 32 when the findings in the PSR are so clear that the reviewing court is not left to second-guess the basis for the sentencing decision. Here, the PSR simply accepted all the drug quantities discussed in testimony at trial. In response to defendant’s voluminous objections to those quantities, the probation officer stated that he was submitting the matter “for the Court’s consideration.” Thus, the appellate court was unable to determine how the district court resolved the disputed issues. U.S. v. Carreon, 11 F.3d 1225 (5th Cir. 1994).

5th Circuit holds that rejection of defendant’s objections and adoption of PSR satisfied Rule 32. (765) Defendant argued that the district court violated Fed. R. Crim. P. 32(c)(3)(D) because it did not “clearly rule” on each of his written objections to the PSR. The 5th Circuit found that the district court complied with Rule 32 when it rejected defendant’s objections and specifically adopted the amended PSR. U.S. v. Nnanna, 7 F.3d 420 (5th Cir. 1993).

5th Circuit holds that district court satisfied Rule 32’s requirements for resolving disputes. (765) Defendants claimed that the district court violated Fed. R. Crim. P. 32(c)(3)(D) by failing to make specific findings regarding their objections to factual inaccuracies in the presentence report. The 5th Circuit found the claim meritless. The district court specifically referred to each disputed issue and indicated that the defendant’s objections to the factual findings in the PSR were without merit. In several instances the district court provided more detail regarding the factors which it considered in resolving the factual disputes. This was sufficient to satisfy Rule 32. U.S. v. Charroux, 3 F.3d 827 (5th Cir. 1993).

5th Circuit relies on PSR’s finding of relevant conduct where defendant offered no contrary evidence. (765) Defendant argued that pre-1988 drug quantities should not have been considered at sentencing because the quantities were not part of the same scheme or course of conduct as the instant offense. The 5th Circuit found no error. The PSR concluded that the pre-1988 conduct was relevant conduct. While defendant objected to the inclusion of these quantities, she offered no evidence that they were not part of the same course of conduct. The district court was therefore free to adopt the PSR without further inquiry. U.S. v. Rogers, 1 F.3d 341 (5th Cir. 1993).

5th Circuit holds that district court resolved disputed facts regarding marijuana quantity. (765) The 5th Circuit held that district court made findings of acts, as required by Fed. R. Crim. P. 32(c)(3)(D) and guideline §6A1.3, to explain its resolution of disputed facts regarding the amount of marijuana involved in defendant’s offense. The district court considered and expressly denied defendants’ objections to the PSR, including their argument regarding drug quantity. In denying the objections, the court implicitly relied on the recommendation of the PSR. In addition, in its judgment, the court made clear that it adopted the findings of the PSR. This was a sufficient determination that the object of the conspiracy was the delivery of 500 pounds of marijuana. U.S. v. Mora, 994 F.2d 1129 (5th Cir. 1993).

5th Circuit holds “reasonable foreseeability” inadequate absent finding defendant joined conspiracy. (765) In calculating the loss resulting from defendant’s conduct, the district court included the loss caused by another’s fraud, finding that it was reasonably foreseeable to defendant that the other’s crime would occur. The Fifth Circuit vacated the sentence because the district court failed explicitly to find either that defendant had agreed jointly to undertake criminal activities with the other person or that the other person’s fraud was within the scope of defendant’s agreement. The verbatim recital of 1B1.3 in the presentence report adopted by the district court was no substitute for an explicit finding. U.S. v. Evbuomwan, 992 F.2d 70 (5th Cir. 1993).

5th Circuit says findings were adequate to support obstruction enhancement. (765) The 5th Circuit held that the district court made adequate factual and legal findings supporting an enhancement for obstruction of justice. Defendant contended that he was not involved in a shooting incident against a witness, and also contended, in an unsworn assertion, that he never threatened another witness. After hearing counsel’s assertions regarding the shooting incident, the district court specifically found that a preponderance of the evidence showed that defendant was involved in the incident. The court also implicitly found that defendant threatened the second witness. Even if the court made no findings regarding the threats, defendant’s objection, based upon bare assertions that he did not threaten the witness, need not have been considered. U.S. v. Whitlow, 979 F.2d 1008 (5th Cir. 1992).

5th Circuit rejects claim that defendant was not provided with tentative findings sufficient to allow objections. (765) Defendant contended that the district court failed to comply with section 6A1.3(b) by failing to provide defendant with tentative findings sufficient to allow objections. The 5th Circuit rejected this as frivolous. Defendant received the presentence report a month before the sentencing hearing. He raised numerous objections to the presentence report at that hearing and presented testimony of two witnesses to support those objections. After cross-examination of those witnesses, the court made specific oral findings rejecting defendant’s objections and then asked defendant and his counsel for any further comments. This procedure satisfied section 6A1.3. The district court is not obliged to furnish tentative factual findings before a sentencing hearing where, as here, it simply adopts the presentence report. U.S. v. Ramirez, 963 F.2d 693 (5th Cir. 1992).

5th Circuit vacates because it had no record of district court’s resolution of disputed facts. (765) Defendant filed numerous written objections to the findings and recommendations of his presentence report. The 5th Circuit vacated his sentence and remanded for resentencing to allow the district court to enter the findings of fact required by Fed. R. Crim. P. 32(c)(3)(D). The appellate court had no transcript of the sentencing hearing, and no other record of the district court’s findings. Where there are disputed facts material to the sentencing decision, the district court must cause the record to reflect its resolution of such disputes, particularly when the dispute is called to the court’s attention. i.U.S. v. Ramirez, 963 F.2d 693 (5th Cir. 1992).

5th Circuit finds that district court’s adoption of presentence report’s findings satisfied Rule 32. (765) Defendant contended that the district court failed to make a factual finding as required by Fed. R. Crim. P. 32(c)(3)(D) concerning one of his objections to the presentence report. The 5th Circuit held that the district court’s adoption of all of the findings in the presentence report satisfied the requirements of Rule 32. It indicated that the court at least implicitly weighed the positions of the probation department and the defense and credited the probation department’s determination of the facts. i.U.S. v. Ramirez, 963 F.2d 693 (5th Cir. 1992).

5th Circuit remands to determine whether amount distributed by conspiracy was foreseeable. (765) Defendants challenged the district court’s determination that they were responsible for two kilograms of cocaine distributed by both of them over the course of their conspiracy. The 5th Circuit remanded for resentencing because the district court failed to determine whether either defendant knew or reasonably should have foreseen the total amount distributed by the conspiracy. The presentence report’s attribution of more than two kilograms of cocaine to each defendant was based on drug sales made by both defendants. Although defendants objected to this conclusion, the district court adopted the presentence report’s conclusion. Neither the judge nor the presentence report addressed whether each defendant knew or could have reasonably foreseen the amount of drugs involved in the conspiracy. U.S. v. Webster, 960 F.2d 1301 (5th Cir. 1992).

5th Circuit refuses to remand because district court did not rely upon disputed matter. (765) Defendant contended, and the government conceded, that the district court violated Fed. R. Crim. P. 32(c) (3)(D) by failing to rule on defendant’s objection to the presentence report’s allegation that defendant had previously been convicted of marijuana possession. Although the government conceded that this violation required a remand, the 5th Circuit found it unnecessary, since the district court clearly did not rely upon the disputed information. Under Rule 32(c)(3)(D), no finding is necessary if the district court states that the disputed fact will not be taken into account in calculating the sentence. Here, the prosecutor advised the court that the prior conviction would have no bearing on the calculation of the guideline range, to which the court responded that it would then leave the issue as a contested matter. It was not necessary for the court to cite the rule or express its determination in the precise language of the rule. U.S. v. Piazza, 959 F.2d 33 (5th Cir. 1992).

5th Circuit rules district court failed to resolve factual dispute concerning drug quantity. (765) Both defendants challenged the presentence report’s determination that they negotiated to purchase 1500 pounds of marijuana, contending that they only intended to purchase the 115 pounds they actually received. The district court made a specific finding of 200 pounds in one defendant’s case, then purported to sentence him on the basis of the total quantity negotiated, although it never made a factual determination of what amount was negotiated. The 5th Circuit ruled that the district court failed to satisfy Fed. R. Crim. P. 32, and remanded the case for factual findings as to the disputed amount of marijuana that could be used to determine defendant’s offense level. No remand was necessary for the other defendant, because the district court expressly adopted the facts set forth in the presentence report. U.S. v. Sherbak, 950 F.2d 1095 (5th Cir. 1992).

5th Circuit finds that court adopted the presentence report’s recommendation on acceptance of responsibility. (765) The 5th Circuit rejected defendant’s argument that the district court failed to state at sentencing whether defendant deserved a reduction for acceptance of responsibility. The presentence report recommended against a reduction because defendant made only limited admissions of his involvement in the offense, denied his intent to purchase a larger quantity of drugs, refused to discuss the large quantity of cash found in the trunk of his car, and refused to discuss prior drug deals. Defendant objected to the presentence report’s recommendation, but did not put any facts into dispute. When a defendant objects to his presentence report but offers no rebuttal evidence to refute the facts, the district court is free to adopt the facts in the presentence report without further inquiry. By assigning defendant an offense level of 28, the court “obviously” adopted the finding of the presentence report that defendant had not demonstrated his acceptance of responsibility. Given defendant’s limited admissions, the refusal to grant the reduction was not clearly erroneous. U.S. v. Sherbak, 950 F.2d 1095 (5th Cir. 1992).

5th Circuit affirms that judge may orally reject defendant’s challenges to presentence report. (765) Defendant contended that the district court violated Fed. R. Crim. P. 32(c)(3)(D) by failing to make written findings rejecting defendant’s challenges to his presentence report. The 5th Circuit rejected this claim, finding that the district court’s oral rejection of defendant’s challenge satisfied the rule’s requirement that the trial court make a finding as to the allegations raised by defendant. U.S. v. Puma, 937 F.2d 151 (5th Cir. 1991).

5th Circuit upholds inclusion of drugs distributed by co-conspirators. (765) Defendant objected to including cocaine, which was part of transactions involving defendant’s co-conspirators, in the calculation of his base offense level. Defendant contended that this was inconsistent with the judgment in one of his co-conspirator’s cases. The 5th Circuit rejected this contention, noting that the other case had been remanded because the district court failed to resolve defendant’s contention that he was not part of the conspiracy to distribute cocaine. In this case, although defendant objected to the presentence report’s conclusion that he was a part of the conspiracy, the district court expressly resolved this disputed matter against him. Therefore, it was proper for the district court to rely upon this fact at sentencing. U.S. v. Ponce, 917 F.2d 846 (5th Cir. 1990).

5th Circuit holds that failure to present rebuttal evidence at sentencing gives court discretion to adopt pre-sentence report. (765) Defendant received a 4-point increase for being an “organizer or leader.” On appeal, he argued that the court violated Fed. R. Crim. P. 32 and § 6A1.3 by improperly relying on the probation officer’s report and not explaining its findings with sufficient specificity. The 5th Circuit affirmed, holding that when, as here, the defendant does not present rebuttal evidence the District Court has discretion to adopt the PSI facts without more specific inquiry or explanation if the facts have an evidentiary basis. The PSI recommendation of a 4-point increase and the government’s notice of intent to use the transcripts of secretly recorded conversations satisfied the requirements of 6A1.3(b) by providing defendant with notice of the court’s “tentative findings” and a reasonable opportunity to present rebuttal before imposition of sentence. Defendant was also allowed to present objections to the report and provide supporting evidence on his behalf at the sentencing hearing, satisfying Fed. R. Crim. P. 32(a)(1). U.S. v. Rodriguez, 897 F.2d 1324 (5th Cir. 1990).

5th Circuit holds that timing of notice of tentative factual findings is within the sentencing court’s discretion. (765) The 5th Circuit held that the sentencing court did not abuse its discretion under Fed. R. Crim. P. 32(c) and guideline § 6A1.3(b) when it informed the defendant of sentencing findings at the beginning of the sentencing hearing and gave him an adequate opportunity to present objections. First, nothing in the rules or guidelines requires a court to notify a defendant prior to the hearing that it is going to ignore the recommendations of a PSI report. Secondly, the defendant had a full opportunity to comment on and make objections to any disputed fact which would form the basis of the sentence. The court stressed that if a court is going to make a sentence determination based upon factors not set forth in the PSI report, it should provide notice to the defendant. However, this notice may be given at the hearing itself. U.S. v. Michael, 894 F.2d 1457 (5th Cir. 1990).

5th Circuit holds court must resolve disputes in presentence report even if it departs from the guidelines. (765) Defendant filed objections to the presentence report, claiming that he was responsible only for the 54 pounds of marijuana found in the van, and that he was not a leader or organizer. The district court failed to make findings as required by Rule 32(c), Fed. R. Crim. P., but simply departed from the guidelines and sentenced him to the five-year maximum sentence. The Fifth Circuit reversed, holding that the district court must make findings under Rule 32(c) even if it departs from the guidelines. U.S. v. Burch, 873 F.2d 765 (5th Cir. 1989).

6th Circuit rules that court made reasonable ruling on loss in securities fraud case. (765) Defendant challenged the district court’s finding that his securities fraud involved a loss of over $2.8 million. The Sixth Circuit found no procedural error. The district court’s findings satisfied Rule 32. Although it did not address defendant’s specific objections to the government’s loss calculation, it did state the factual reasons behind its acceptance of this loss calculation. The government’s calculation was based on the total outstanding bonds on the company. This was not an unreasonable method or calculation. Although defendant argued that the court should have considered other causes of the loss to deduce the loss caused by defendant, this circuit has not explicitly adopted a means of calculating loss that requires incorporating other causes of loss. U.S. v. Poulsen, 655 F.3d 492 (6th Cir. 2011).

6th Circuit relies on unobjected-to facts in PSR to support leadership increase. (765) Defendant pled guilty to conspiracy to distribute cocaine hydrochloride, and received a four-level increase for having a leadership role in the offense. The Sixth Circuit affirmed. The indictment charged at least 12 individuals with involvement in the drug conspiracy, and at least six of those co-defendants, including defendant, pled guilty to the charges. As for defendant’s leadership role, to qualify for the adjustment, defendant need only have been the organizer or leader of one or more other participants. The PSR indicated that defendant acted as the supplier for the drug trafficking organization. It also detailed conversations between defendant and other individuals, which indicated that defendant and Bates were the organizers and leaders of the organization. Defendant did not object to the PSR’s factual allegations, and thus the district court was entitled to accept them as true. U.S. v. Baker, 559 F.3d 443 (6th Cir. 2009).

6th Circuit reverses where court did not resolve disputed issues in PSR and simply selected sentence based on § 3553(a) factors. (765) At sentencing, the district court did not resolve defendant’s objections to the PSR expressly, nor did it determine that the matters to which she objected were not material to and would not be considered in calculating her sentence. A sentence is unreasonable when the district judge fails to consider the applicable guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration. Here, the court could not have considered the applicable guideline range because it did not calculate a correct guideline range. Instead, the court looked at the two proposed guidelines ranges (one in the PSR and the other by defendant), concluded that neither was correct, and without making factual findings to support any guideline range, selected what it viewed as an appropriate sentence in light of the § 3553(a) factors. The Sixth Circuit reversed, finding that more was required. U.S. v. Lanesky, 494 F.3d 558 (6th Cir. 2007).

6th Circuit says defendant’s version of prior offense did not warrant below-guidelines sentence. (765) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court found that defendant’s prior conviction for sexual abuse involving a minor was a “crime of violence” under § 2L1.2(b)(1)(A)(ii) and added 16 levels to his offense level. Defendant introduced evidence that the sexual conduct that led to his prior conviction was consensual, and he argued that the court should impose a sentence below the guideline range for that reason. The district court rejected that argument and instead imposed a sentence at the low end of the guideline range. Applying a presumption of reasonableness to sentences within the guideline range, the Sixth Circuit upheld the sentence, finding that the district court was under no obligation to accept defendant’s version of events or, if it did believe defendant, to impose a sentence below the guidelines range. U.S. v. Trejo-Martinez, 481 F.3d 409 (6th Cir. 2007).

6th Circuit says denial of acceptance reduction and imposition of obstruction increase was not double counting. (765) Defendant argued that the district court engaged in impermissible “double counting” by citing his escape from jail as a basis both for (i) denying a two-level reduction for acceptance of responsibility under § 3E1.1, and (2) applying a two-level enhancement for obstruction of justice under § 3C1.1. However, the Sentencing Guidelines not only permit the “double counting” raised by defendant here, they dictate that this is the proper result in all but the most “extraordinary” cases. See Note 4(e) to § 3E1.1 (obstruction under § 3C1.1 ordinarily indicates that a defendant has not accepted responsibility for his criminal conduct; both adjustments apply only in “extraordinary” cases). While the Sixth Circuit found no legal problem in the enhancement under § 3C1.1 and the denial of a downward adjustment under § 3E1.1, the panel nonetheless found that the court did not make the requisite factual findings in support of its application of the guidelines, and remanded. The district court’s adoption of the PSR, without making findings on all controverted issues, violated Fed. R. Crim. P. 32(c)(1). U.S. v. Robinson, 390 F.3d 853 (6th Cir. 2004).

6th Circuit finds Rule 32 violation where court did not respond to defendant’s objections to loss calculation. (765) Defendant was involved in a large-scale fraud scheme in which he stole personal information of individuals from mortgage applications they filed at his places of employment and sold that information to his co-conspirators. The PSR recommended that defendant was responsible for more than $400,000 in damages under § 2B1.1(b)(1)(H), and defendant objected, challenging several aspects of this calculation. The district court accepted the government’s calculation, without giving any indication as to how it calculated the loss. The Sixth Circuit held that the district court violated Rule 32 of the Federal Rules of Criminal Procedure when it rejected defendant’s challenge to the loss calculation without responding to his specific objections. Even a cursory glance at the government’s loss exhibit raised concerns, since some of the sheets contained no dates and did not indicate how several identified people fit into the conspiracy in relation to defendant. From the record, the appellate court could not determine whether the district court “carefully considered the evidence” because it failed to respond to defendant’s objections. U.S. v. Nelson, 356 F.3d 719 (6th Cir. 2004).

6th Circuit says court could not exclusively rely on PSR to resolve disputed matter. (765) Defendant objected to the PSR’s recommendation that he receive a four-point enhancement for his leadership role in the offense. The district court overruled defendant’s objection, stating that it was denying the objections “for the reasons stated by the United States Probation Department.” Because the matter of leadership role was disputed by defendant in his objections to the PSR, the district court had an obligation under Rule 32 to issue a ruling on the disputed matter unless the matter would not affect sentencing or would not be considered in sentencing. The Sixth Circuit ruled that the district court did not comply with Rule 32, and remanded for a ruling on the disputed matter. The court never issued a specific ruling on whether the criminal activity involved five or more individuals or whether it could be considered extensive. In ordering the enhancement, the court exclusively relied on the reasoning of the probation department. However, exclusive reliance on the PSR when a matter is in dispute cannot be considered a ruling. U.S. v. Darwich, 337 F.3d 645 (6th Cir. 2003).

6th Circuit holds that court properly relied on findings in PSR to support abuse of trust increase. (765) For almost 20 years, defendant was employed as a trade-in specialist for a furniture manufacturing company. Defendant’s job was to hire contractors to remove and dispose of used office furniture from companies that had purchased new furniture from her employer. Over a several-year period, defendant submitted 20 fictitious invoices from a company she controlled. Her employer suffered a total loss of over $600,000. The Sixth Circuit affirmed a § 3B1.3 increase for abuse of a position of trust. First, the district court did not commit error by relying on factual findings contained in the PSR rather than making its own determination of the facts. The attorney’s objection to the PSR was not sufficient to give rise to a dispute within the meaning of Rule 32. A defendant cannot show that a PSR is inaccurate by simply denying the PSR’s truth. The increase was proper on the merits. Defendant’s position allowed her the discretion to hire independent companies and to submit their invoices, and no one at her employer was required to oversee her transactions. These factors undoubtedly facilitated both the commission and concealment of the offense. U.S. v. Lang, 333 F.3d 678 (6th Cir. 2003).

6th Circuit holds that court made findings that defendant’s prior conviction was aggravated felony. (765) Defendant was convicted of illegally reentering the country after deportation, and received a 16-level enhancement because his deportation followed a conviction for an aggravated felony, a 1997 cocaine trafficking offense. Defendant objected to the PSR’s characterization of the offense as an aggravated felony, claiming that he did not intend to distribute the cocaine, which was for his personal use. The court heard arguments on the question, and the government noted that the 87 grams of cocaine was inconsistent with personal use. The court then heard from defendant and then announced that the only way it could reduce the sentence would be if it found the criminal history category overstated the criminal history. Based on the sentencing decision the district court made and the evidence in the record, the Sixth Circuit ruled that the sentencing court did in fact make a finding that defendant’s 1997 conviction constituted an aggravated felony. The panel further agreed that the conviction was an aggravated felony within the meaning of § 13426 because 18 U.S.C. § 924(c) together with 8 U.S.C. § 1101(a)(43)(B) explicitly so state. Finally, the panel rejected defendant’s claim that he should be sentenced under guideline § 2L1.2 as it was amended in November 2001. This guideline did not become effective until six months after he was sentenced. U.S. v. Murillo-Iniguez, 318 F.3d 709 (6th Cir. 2003).

6th Circuit finds no plain error in accepting PSR’s recommendation where defendant did not object. (765) The PSR found that defendant directed the activities of two others in the drug transactions that formed the basis of the offense of conviction and found this evidence to be relevant conduct for purposes of § 3B1.1. Defendant did not object to this recommendation. Rule 32(b)(6)(D) provides that “Except for any unresolved objection under subdivision (b)(6)(B), the court may, at the hearing, accept the presentence report as its findings of fact.” Because defendant made no objections, the Sixth Circuit held that the district court did not commit plain error in accepting the PSR’s recommendation for enhancement. U.S. v. Garcia-Meza, 315 F.3d 683 (6th Cir. 2003).

6th Circuit finds court’s resolution of issue was sufficient where defendant agreed objection was irrelevant. (765) Defendant, the chief administrative officer of the American Cancer Society of Ohio (ACS), was convicted of various fraud charges for converting ACS funds for his own use. He argued that he was sentenced based on unreliable evidence that his actions caused a temporary reduction in Franklin County, Ohio’s charitable donations to the American Cancer Society. The Sixth Circuit held that the district court’s treatment of the issue was not grounds for reversal. The sentencing court did not do much of an independent inquiry but neither did it merely adopt the factual findings of the PSR. The court independently determined that the allegations in the PSR were credible. Although thorough analysis is necessary when dealing with a “hotly contested factual issue,” the issue of whether defendant’s actions caused a reduction in donations was not such an issue. Defendant did not even raise it at sentencing; the government lawyer brought the unresolved issue to the court’s attention. At the hearing, defendant agreed that the objection was irrelevant because it had no effect on the Sentencing Guidelines. Defendant offered no reason to contradict the evidence in the PSR, and the sentencing judge found it credible. U.S. v. Wiant, 314 F.3d 826 (6th Cir. 2003).

6th Circuit holds that court satisfied obligations to make findings on each contested issue. (765) Defendant argued that the district court did not make independent factual findings for each contested matter in the PSR, in violation of Fed. R. Crim. P. 32(c)(1). The Sixth Circuit disagreed. The partial transcript from the sentencing hearing showed that the court first considered defendant’s objection to the amount of the tax loss. Although the appellate court could not determine what the sentencing court may have said or heard on the missing pages of the transcript, the few pages that were provided clearly revealed that the court did not merely summarily adopt the amount of loss presented in the PSR. The court specifically noted that it was required to make specific findings of fact under Rule 32, and could not rely on the PSR. After making this statement, the court set out its independent factual findings as to defendant’s remaining two objections. These findings satisfied Rule 32(c)(1). U.S. v. Tarwater, 308 F.3d 494 (6th Cir. 2002).

6th Circuit remands where court failed make findings or rule on objections to PSR. (765) Rule 32(c)(1) requires a district court at sentencing to rule on any objections the defendant has raised to the PSR. Further, “[f]or each matter controverted, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not be taken into account in, or will not affect, sentencing.” Defendant challenged the PSR’s finding that he was responsible for distributing about 24 grams of methamphetamine. In rejecting the challenge, the judge did nothing more than state summarily that he was accepting the sentencing range as set forth in the PSR. The Sixth Circuit found this insufficient to comply with Rule 32(c)(1), and remanded for resentencing. U.S. v. Osborne, 291 F.3d 908 (6th Cir. 2002).

6th Circuit holds that defendant’s waiver relieved court of obligation to make Rule 32(c)(1) findings. (765) Defendant argued that the district court violated Rule 32(c)(1) because it failed to make specific factual findings regarding the amount of methamphetamine for which he was responsible. Despite defendant’s written objection, the district court said nothing about the amount of meth attributable to defendant. The Sixth Circuit found that the district court did not violate Rule 32(c)(1) because defendant waived his written objection at the sentencing hearing. After a lengthy discussion about whether defendant deserved a four-point leadership enhancement, the court asked whether there was “anything else from defense counsel.” Defendant’s attorney replied, “Your Honor, we have no – we still have the objection to the four-point enhancement.” By failing to reiterate his objection to the base offense level when asked by the district court whether there was anything else to be considered, defendant waived his right to object to the amount of meth attributable to him. Drug quantity ceased to be a controverted sentencing issue, and the court was entitled to adopt the PSR’s recommendation without making its own factual findings. U.S. v. Bennett, 291 F.3d 888 (6th Cir. 2002).

6th Circuit reverses where court failed to make specific findings of amount of laundered funds. (765) The district court, in responding to defendant’s objection to his PSR’s calculation of the amount of laundered funds for which he should be held responsible, said that “during Defendant’s involvement in the conspiracy, approximately $449,000 was laundered and was reasonably foreseeable by Defendant. Pursuant to U.S.S.G. § 2S1.1(b)(2), the range of $350,000 to $600,000 applies and three (3) points are added to the Offense Level. Accordingly, the objection is DENIED.” No other explanation was found in the record. The Sixth Circuit held that the district court failed to make adequate findings to support its calculation. In applying the guidelines to particular defendants who have been convicted for their role in a conspiracy, a district court must differentiate between the co-conspirators and make individualized findings of fact for each defendant. Here, the court neglected to identify the particular evidence presented at trial and at the sentencing hearing that led it to find defendant accountable for $449,000, and did not present anything other than general conclusions in its Rule 32(c) findings. Although the evidence might justify holding defendant accountable for $449,000 in laundered money, the court’s failure to explain its factual determination required remand. U.S. v. Orlando, 281 F.3d 586 (6th Cir. 2002).

6th Circuit says fact-finding duty not triggered where defendant failed to allege factual inaccuracies in PSR. (765) Defendant argued that the district court erred by failing to expressly rule on two of his objections to the PSR. See Fed.R.Crim.P. 32(c)(1) (sentencing court must make a finding on each matter controverted or determine that no finding is necessary because it will not affect sentencing.) The Sixth Circuit held that defendant waived his right to object (1) by failing to allege in either objection that the report contained factual inaccuracies, and (2) by failing to specifically bring these matters to the attention of the court during the sentencing hearing. Where a defendant does not assert that objected-to recommendations in a PSR are based on false or unreliable information, and does not expressly call them to the court’s attention during the sentencing, those matters are not sufficiently “controverted” to trigger the sentencing court’s fact-finding duty under Rule 32(c)(1). U.S. v. Hurst, 228 F.3d 751 (6th Cir. 2000).

6th Circuit holds that summary adoption of PSR did not satisfy Rule 32(c)(1). (765) Defendants objected to several findings in their PSRs. The court did not set out findings as to any of these issues at sentencing. Instead, it either summarily adopted the findings of the PSR or simply declared that the enhancement in question was supported by a preponderance of the evidence. Rule 32(c)(1) requires that, for each controverted sentencing matter, the court must make either a finding on the allegation or a determination that no finding is necessary because the controverted matter will not affect sentencing. The Sixth Circuit requires “literal compliance” with this provision. Because the court did not comply with the requirements of Rule 32(c)(1), the Sixth Circuit remanded for resentencing in compliance with the rule. Without a record of the district court’s finding, the appellate court could not conduct a meaningful review of its sentencing calculations. U.S. v. Corrado, 227 F.3d 528 (6th Cir. 2000).

6th Circuit holds that resentencing court should address objections to new PSR. (765) Defendant did not object when his first PSR held him responsible for between 5 and 15 kilograms of cocaine. The court later vacated one of his convictions and his sentence on unrelated grounds. The court ordered resentencing and directed the probation department to create a new PSR. The second PSR attributed between 5 and 15 kilograms of cocaine to defendant, but also listed the drugs involved in the overt acts charged in the indictment. Defendant objected. At resentencing, the district court refused to address the drug quantity issue. The Sixth Circuit held that the district court erred in failing to consider defendant’s drug quantity challenge. On remand following a direct appeal, a district court can consider de novo any argument regarding sentencing if the remand order does not limit its review. Although the resentencing here arose from a successful § 2255 motion, the same concerns applied. In the present case, the district court ordered the preparation of a new PSR without limitation, and the new report set forth a statement regarding the amount of drugs that differed from the original PSR. District courts should address any objections that a defendant might have to a “new” report that contains materially different information than the first PSR, even if those objections come during resentencing. U.S. v. Saikaly, 207 F.3d 363 (6th Cir. 2000).

6th Circuit relies on PSR’s figure despite objection where defendant did not suggest competing figure. (765) Using the PSR for guidance, the district court calculated the retail value of a car defendant stole at $13,500. Defendant challenged the accuracy of the $13,500 figure, but suggested no competing figure. Thus, the Sixth Circuit ruled that the judge was not clearly erroneously in relying, as a factual matter, upon the PSR. U.S. v. Talley, 194 F.3d 758 (6th Cir. 1999).

6th Circuit counts drugs involved in acquitted conduct. (765) On April 24, 1996, defendant was in the car when Christian sold drugs to a confidential informant. Christian later testified that defendant was the person who gave her the drugs and dictated the price. Defendant was convicted of drug conspiracy and possession charges, but was acquitted of the April 24, 1996 distribution. The Sixth Circuit upheld the inclusion of the drugs involved in the acquitted distribution count. The district court did not clearly err in relying upon Christian’s testimony to conclude that the acquitted conduct actually occurred. Defendant also argued that the district court did not make a finding on the record that the conduct occurred. However, the district court adopted the PSR as its findings of fact and law. Because defendant did not object to the PSR, the district court was not on notice that it had to make more specific findings on the record. U.S. v. Ward, 190 F.3d 483 (6th Cir. 1999).

6th Circuit holds violation of Rule 32(c)(1) was harmless in light of defendant’s own admissions. (765) The district court enhanced defendant’s sentence under § 2T1.3(b)(1) for failing to report more than $10,000 in income from criminal activity. The Sixth Circuit found that although the district court did not properly comply with Rule 32 when it adopted the PSR in support of the § 2T1.3(b)(1) enhancement, the error was harmless in light of defendant’s own admissions. The challenged portion of the report stated only that defendant misappropriated the client funds and then failed to include the money as income on his tax return. This was consistent with an IRS agent’s statement at the plea hearing, which defendant admitted was accurate. U.S. v. Parrott, 148 F.3d 629 (6th Cir. 1998).

6th Circuit relies on conduct in dismissed counts to support school zone enhancement. (765) In exchange for defendant’s plea to a single drug conspiracy count, the government dismissed several substantive charges against him, including possession of crack with intent to distribute within 1000 feet of a school. The plea agreement contemplated a guideline range of 70-87 months. It did not suggest that the sentence would be increased for activities within 1000 feet of a school. Nevertheless, relying on the PSR, the judge found that defendant possessed and intended to distribute crack within 1000 feet of a school. This resulted in a guideline range of 87 to 108 months. The judge imposed an 87-month sentence. The Sixth Circuit upheld the enhancement for selling drugs within 1000 feet of a school. The PSR reported 3 incidents of defendant selling crack near a school. Although defendant objected to the enhancement, he did not challenge the accuracy of the PSR. Instead, he merely stressed that he had not intended to plead guilty to conduct that occurred close to a school. However, the 87-month sentence was within the range contemplated by his plea agreement. U.S. v. Benjamin, 138 F.3d 1069 (6th Cir. 1998).

6th Circuit rules court failed to make findings of fact to support loss calculation. (765) Defendant was convicted of various fraud charges for manipulating the financial records of his drugstore chain. The PSR valued the loss at over $2 billion, and recommended the maximum guideline enhancement of 18 for a loss exceeding $80 million plus a four point upward departure. Defendant argued that the PSR calculation overvalued the loss because it did not offset the amount of collateral the lenders could recover or the residual value of the company’s stock after the fraud was discovered. At sentencing, the government argued that a hearing on this issue was not necessary because the loss was easily beyond the $80 million maximum in the guidelines. The court stated that it would enhance the base level by 18 because it was convinced that the defendant was responsible for at least $80 million. The Sixth Circuit ruled that the district court failed to make the required findings of fact as required by Rule 32(c)(1). Although the court found the loss exceeded $80 million, it did not explain how it calculated the amount of loss or respond to the defendant’s specific factual objections to the methods of calculations included in the PSR. The court also did not issue written findings of fact as required by Rule 32. U.S. v. Monus, 128 F.3d 376 (6th Cir. 1997).

6th Circuit remands for findings regarding basis for obstruction enhancement. (765) After defendants’ son was indicted on arson and firearms charges, they falsified records and attempted to influence a witness. The district court enhanced their sentences under § 2J1.2(b)(2) for “substantial interference with the administration of justice.” The Sixth Circuit remanded because the court made no findings regarding the basis for the enhancement. Although the PSR said that defendants delayed the investigation and caused the government to waste time and effort, defendants disputed this. The government argued at sentencing that § 2J1.2(b)(2) was not the correct guideline, but that § 2J1.2(c) and by cross reference, § 2X3.1, should apply. The district court sentenced both defendants as recommended in their PSRs without ruling on the government’s legal argument or making any findings of fact. With respect to controverted matters, Rule 32(c)(1) requires a sentencing court to either make a finding on the allegation or to state that the controverted matter will not be taken into account. The court did not address the contested question of how much time and effort defendants’ conduct had caused nor did it decide which guideline applied. U.S. v. Tackett, 113 F.3d 603 (6th Cir. 1997).

6th Circuit finds no error in refusing to consider evidence supporting departure. (765) Defendant pled guilty to knowingly receiving child pornography through the mails. The government had evidence that defendant was a predatory pedophile who for two decades had sexually abused and exploited more than a dozen minor females. It argued that departures under § 4A1.3, § 5K2.3 and § 5K2.8 were warranted because defendant’s criminal history underrepresented the seriousness of his past criminal conduct, his victims suffered extreme psychological injuries, and his conduct was unusually heinous and degrading to the child victims. The Sixth Circuit upheld the district court’s refusal to permit the government to introduce evidence to justify the departures. Sections 5K2.3 and 5K2.8 did not apply, because the subjects of the pornographic material were not the victims in this case. Moreover, the guidelines do not require the court to consider all information concerning the defendant in deciding whether a departure is required. The district court agreed that defendant likely was a predatory pedophile but decided that its sentence adequately addressed the government’s concerns. U.S. v. Surratt, 87 F.3d 814 (6th Cir. 1996).

6th Circuit says court made sufficient factual findings before imposing sentence. (765) Defendant argued that the court relied on information that failed to meet the minimum indicia of reliability required by § 6A1.3(a). The Sixth Circuit disagreed. The district court held a hearing, heard testimony from the probation officer and from the defendant himself, and used information in the presentence report to make its factual determinations. The district court also determined that portions of the PSR would not be considered in imposing sentence. Thus, the court made sufficient factual findings under § 6A1.3(a) concerning the imposition of defendant’s sentence. U.S. v. Greene, 71 F.3d 232 (6th Cir. 1995).

6th Circuit rejects enhancement based solely on probation officer’s disputed assertion in PSR. (765) Defendant pled guilty to one count of making a false statement on a credit application. The district court imposed a more than minimal planning enhancement based on the probation officer’s assertion in defendant’s PSR that defendant participated in a larger credit card scheme in Florida. Defendant denied involvement in the scheme. The PSR did not cite any specific evidence linking defendant with this scheme, and the government did not present any evidence at sentencing in support of the enhancement. The Sixth Circuit held that the PSR’s conclusion was an insufficient basis for the enhancement. When a contested sentencing enhancement factor appears in the probation report and is not proved by the government at sentencing, a court must insure that the factor is otherwise proven by reliable evidence before using it to increase the sentence. U.S. v. McMeen, 49 F.3d 225 (6th Cir. 1995).

6th Circuit directs court to make a finding of fact on objections to presentence report. (765) The district court responded to defendant’s objections to the presentence report by concluding that they were merely an attempt to retry the case already decided against him by the jury. Since the case was being remanded on other grounds, the 6th Circuit directed the district court to make findings of fact with respect to any objection the defendant made to the presentence report. U.S. v. Carr, 5 F.3d 986 (6th Cir. 1993).

6th Circuit upholds adoption of PSR where defendant failed to offer evidence to support its findings. (765) Defendant’s PSR stated that he stole $139,000, while defendant contended that he only stole $104,000. The court adopted the findings of the PSR. The 6th Circuit affirmed, since defendant failed to offer at any time any evidence to rebut the findings of the probation report. The $104,000 figure was “mere conjecture, unsupported by any evidence.” U.S. v. Velez, 1 F.3d 386 (6th Cir. 1993).

6th Circuit remands for specific findings on disputed matters in presentence report. (765) Defendant filed objections to the presentence report, which the probation officer included under a section entitled “Unresolved Objections.” At the sentencing hearing defendant’s counsel said he had no objections to the report. The district court failed to make written factual findings or a determination that a finding was unnecessary to its sentencing decision, as required by 32(c)(3)(D) Fed. R. Crim. P. The 6th Circuit found that since defendant’s objections were clearly in the presentence report, the district court was obligated to make specific findings concerning the disputed matters. The case was remanded for factual findings and resentencing. U.S. v. Edgecomb, 910 F.2d 1309 (6th Cir. 1990).

7th Circuit finds court resolved disputed facts by adopting PSR. (765) Defendant objected to four of the probation officer’s factual representations in his PSR. After hearing the evidence presented at sentencing, the district court imposed an above-guidelines sentence of 400 months. Defendant argued that the court violated Fed. R. Crim. P. 32(i)(3)(B), by not explicitly ruling on his objections to the PSR prior to sentencing. The Seventh Circuit disagreed. Rule 32(i)(3)(B) imposes a “minimal burden.” A sentencing court must still make findings on the record to resolve a factual dispute between the parties, but “[t]he district court can often satisfy the rule by adopting the proposed findings in the [PSR], even as to contested facts, so long as the PSR articulates a sufficiently clear basis for the sentence and the reviewing court can be sure that the district court made a decision of design rather than of convenience.” U.S. v. Sykes, 357 F.3d 672 (7th Cir. 2004). Here, after noting defendant’s objections to the PSR, the district court adopted the probation officer’s findings. The statements the district judge made after hearing the evidence and prior to imposing the sentence clearly indicated her acceptance of the version of the facts in the PSR and provided the appellate court with a sufficient record to engage in effective appellate review. U.S. v. Brown, 716 F.3d 988 (5th Cir. 2013).

7th Circuit upholds obstruction increase based on false statements in suppression affidavit. (765) In defendant’s motion to suppress statements he made to agents, defendant asserted that he was subjected to custodial interrogation prior to receiving his Miranda warnings. In his affidavit in support of the suppression motion, defendant claimed that he was handcuffed immediately after agents entered the house, then taken to the garage and questioned, and did not receive any Miranda warnings until he arrived at the police station. At the evidentiary hearing, however, an agent testified that defendant was not handcuffed immediately upon entry of agents into the residence, and that after the initial questioning, defendant was given Miranda warnings. The district court credited the government agent’s account of the events, found defendant’s version was false, and enhanced his offense level for obstruction of justice. The Seventh Circuit affirmed the obstruction increase. Although defendant argued that his statements were not false, the district court’s credibility determinations were entitled to special deference. U.S. v. Gonzalez-Mendoza, 584 F.3d 726 (7th Cir. 2009).

7th Circuit remands because court failed to precisely calculate defendant’s total offense level. (765) Both the PSR and the government recommended a total offense level of 29 for each defendant. With a criminal history level of I, the sentencing range was 87-108 months. Defendants, however, filed numerous objections to the PSR challenging a number of enhancements, and arguing that the proper total offense level was 19 or 21, rather than 29. The district court did not definitely resolve the defendants’ objections to the PSR, and therefore did not calculate the total offense level and corresponding sentencing range. Instead, the court made only an estimate of the total offense level, which he considered to be “around” level 26 or 27. The Seventh Circuit remanded, finding the sentencing record lacked sufficient clarity to determine how or if the court made final rulings on the defendants’ objections to the PSR, much less the court’s methodology and final determination of the total offense level under the guidelines. Without this, the appellate court could not determine whether the sentence falls within the guidelines range (and therefore is entitled to a presumption of reasonableness) or whether it falls outside of the recommended range (and therefore requires sufficient additional reasoning from the district court). U.S. v. Bokhari, 430 F.3d 861 (7th Cir. 2005).

7th Circuit says court abused discretion in not granting continuance so that government could supplement record. (765) The parties agreed under defendant’s plea agreement that he should receive a three-level increase under § 3B1.1(b) for being a manager or supervisor of criminal activity involving five or more participants. At sentencing, the court refused to apply the enhancement, finding that the government had not provided sufficient evidence to support the increase. The government asked the court for a continuance so that witnesses could be brought to testify about defendant’s role in the offense, but the court declined to grant one. The Seventh Circuit held that the court’s refusal to grant the continuance under these circumstances was an abuse of discretion. Ordinarily, when both parties agree to a sentencing adjustment, they do not come to court armed with the testimonial, documentary and physical evidence necessary to prove the basis of their agreement. Since both parties had agreed to the managerial role enhancement, when the court found that the facts in the record were insufficient to support that increase, the court should have notified the parties in advance of the sentencing hearing of the issue in dispute, or at sentencing granted a continuance to the party seeking to supplement the record on that issue. U.S. v. Sienkowski, 359 F.3d 463 (7th Cir. 2004).

7th Circuit holds defendant accountable for total amount of fraudulent deposits. (765) Over a several year period, defendant manufactured counterfeit checks on his home computer and used them to defraud about 20 different banks and investment companies. Before being caught, he caused over $1 million of actual loss to his victims. He argued that the district court failed to explain its conclusion that he intended to inflict over $10 million of loss. The Seventh Circuit found no error in the court’s finding that defendant intended to steal the total amount of the fraudulent deposits and wire transfers. The district court clearly resolved the controversy and provided a basis for its ruling, in accordance with Rule 32. When the court adopted the government’s theory of the case (rather than defendant’s claim that he only intended to steal as much as necessary to satisfy his personal debts), the court cited relevant case law, explained that it agreed with the government’s analysis of the facts, and then explained that it was rejecting defendant’s calculations because it believed that he intended to steal the total amount of money he deposited into the accounts. The court was not required to accept defendant’s claim about the portion of the worthless deposits he hoped to access. U.S. v. Sykes, 357 F.3d 672 (7th Cir. 2004).

7th Circuit holds that court satisfied Rule 32(c)(1) by adopting PSR. (765) Defendant argued that the district court did not make particularized findings with regard to a number of sentencing enhancements. The Seventh Circuit ruled that the court satisfied its Rule 32(c)(1) obligations by adopting the findings and calculations contained in the PSR. Defendant made no affirmative contention that the PSR was inaccurate; therefore, the panel had no reason to question the court’s reliance upon the PSR. U.S. v. Parolin, 239 F.3d 922 (7th Cir. 2001).

7th Circuit rules that court made independent determination of drug quantity. (765) Defendant complained that in attributing 15-50 kilograms of cocaine to him, the district court adopted the PSR’s drug quantity calculation, which was just a wholesale adoption of the government’s position. However, the Seventh Circuit found that the district judge based his calculations on the evidence in the record and did not simply state the government’s calculations set forth in the PSR without scrutinizing them. The judge noted that he had reviewed the transcripts, and although there were some inconsistencies in the testimony, he found two witnesses were truthful about drug quantity. The judge also determined that the government’s calculations were quite conservative. Thus, the court based its adoption of the government’s figures on an independent review of the record. Moreover, the probation officer’s substantial reliance on the government’s position did not mean that the information on which it relied or the calculations it performed were inaccurate; it simply meant that the probation department also believed that there was a sufficient basis for these calculations. U.S. v. Johnson, 200 F.3d 529 (7th Cir. 2000).

7th Circuit says defendant forfeited right to challenge loss for restitution purposes. (765) Defendant challenged a restitution order for the first time on appeal by arguing that the government presented no evidence as to the amount of loss the victim bank incurred. Defendant did not object to the lack of evidence on this point either in his written objections to the PSR or during the sentencing hearing. Because he failed to contest the amount initially, the Seventh Circuit ruled that defendant forfeited the right to challenge its accuracy. Moreover, even if he had not forfeited this issue, defendant’s challenge would fall short. At sentencing, the district court referred to the PSR, which contained information regarding the bank’s losses and defendant’s financial circumstances. A court may accept the facts in a PSR as true, unless the defendant produces some evidence, more than mere denials, questioning the PSR’s accuracy. Defendant did not make such a challenge. U.S. v. McIntosh, 198 F.3d 995 (7th Cir. 2000).

7th Circuit remands where court gave no reason for enhancement. (765) Defendant challenged an aggravating role enhancement under § 3B1.1. However, the district court gave no reasons for its decision to impose the enhancement. The court’s order rejected a proposed four-level enhancement under § 3B1.1(a), citing the § 3B1.1(c) provision for a two-level enhancement, and stating only “[s]uch an increase is warranted in this case for Washington.” The Seventh Circuit held that the court’s findings were insufficient under Fed. R. Crim. P. 32(c)(1), which requires that the court give reasons for its decision. U.S. v. Washington, 184 F.3d 653 (7th Cir. 1999).

7th Circuit holds that court’s drug calculation lacked adequate basis. (765) The district court’s drug quantity calculation was based primarily on defendant’s drug transactions with Seeman and Hudy. The judge noted that discrepancies existed between the trial testimony and initial statements the men made to police. When a court relies upon one of two contradictory statements offered by a witness, “it should directly address the contradiction and explain why it credits one statement rather than the other.” The Seventh Circuit ruled that in absence of an explanation or other evidence justifying the court’s choice of one account over the other, the judge’s calculation lacked an adequate evidentiary basis. The court concluded that Seeman purchased crack from defendant “ten times at 3 to 3.5 grams a piece or 35 grams.” This conclusion was not supported by the evidence. Seeman testified that he bought at least 3.5 grams of crack a week, not each time. U.S. v. Span, 170 F.3d 798 (7th Cir. 1999).

7th Circuit relies on PSR’s findings where defendant did not provide evidence to support objections. (765) Defendant objected to the district court’s use of the PSR to determine that he was a career offender and that he could produce more than 1000 grams of methamphetamine from the chemicals found at his house. The court overruled defendant’s objections. The Seventh Circuit held that because defendant failed to present any evidence to support his objections, the district court properly adopted the factual findings from the PSR. On the other hand, the government presented copies of defendant’s prior criminal history to substantiate the PSR’s determination of defendant’s criminal history category. The government also presented the testimony of a DEA forensic chemist to substantiate the government’s computation of the amount of methamphetamine that could be produced from the chemicals found at defendant’s residence. A court may rely on the PSR’s factual findings if they are based on sufficiently reliable information. The facts in defendant’s PSR were sufficiently reliable because they were consistent with the evidence presented. U.S. v. Krankel, 164 F.3d 1046 (7th Cir. 1998).

7th Circuit finds court made adequate findings on contested matters in PSR. (765) Defendant took part in a drug distribution network. He argued that the district court failed to explain how it found him responsible for “just under 700 kilograms” of marijuana equivalent. The Seventh Circuit held that the district court properly relied on uncontroverted matters in the PSR to make drug quantity findings, and made sufficient findings as to the contested matters. The court announced that it was adopting the PSR in its entirety with the exception of the recommended acceptance of responsibility reduction. To adopt the PSR is to make factual findings. As to the contested matter of the number of trips defendant made to Arizona to purchase drugs, the district court noted it had listened to three days of testimony, reviewed exhibits and found that the testimony supporting the PSR’s determination was credible and corroborated by other sources. A court’s reference to the PSR constitutes sufficient findings even as to contested facts when it is clear that the court made a decision of design rather than of convenience. U.S. v. Burke, 148 F.3d 832 (7th Cir. 1998).

7th Circuit holds court’s adoption of PSR justified supervisory enhancement. (765) Defendant participated in a conspiracy that conducted an illegal gambling business, made extortionate extensions of credit, and collected a “street tax” from local businesses. Defendant argued that the district court erroneously found that he played a supervisory role in the illegal gambling operation. The Seventh Circuit affirmed the § §3B1.1 enhancement because defendant did not object to the PSR’s finding that he had a supervisory role in the operation of the gambling business. At the final sentencing hearing, defense counsel agreed that the PSR’s recitation of the facts of the offense to which defendant pled guilty was factually accurate. The judge then said he was making those findings of fact the basis for sentencing. That procedure was sufficient to justify a supervisory enhancement. The PSR stated in pertinent part that 10 defendants engaged in the activity, defendant was the third most culpable, he supervised the crew’s illegal gambling and loan operations and was aware of all aspects of the crew’s criminal activity. Defendant’s claim, raised for the first time on appeal, that there were fewer than five participants in the scheme, was contradicted by the facts in the PSR. U.S. v. Wing, 135 F.3d 467 (7th Cir. 1998).

7th Circuit reverses for insufficient findings to support managerial role enhancement. (765) Defendant pled guilty to a cocaine distribution conspiracy. In imposing a § 3B1.1(b) enhancement over defendant’s objection, the court explained only that defendant clearly was “a manager in the cocaine business.” The Seventh Circuit held that these findings were insufficient to support the § 3B1.1(b) enhancement. Although there may have been evidence in the record to support the enhancement, the district court made no findings and did not refer to the recommendations in the PSR. The court did not identify any other participant in the criminal activity who was controlled by defendant, and did not discuss whether the activity involved five or more participants or was otherwise extensive. When an issue under the guidelines is disputed, the court either must adopt the PSR’s recommended findings or make independent findings sufficient to support its conclusion. The court did neither here. U.S. v. Patel, 131 F.3d 1195 (7th Cir. 1997).

7th Circuit reverses relevant conduct findings for lack of relationship between cash and offense. (765) In holding defendant accountable for more than 50 kilograms of cocaine, the court referred to 40 kilograms in the transaction that resulted in defendant’s arrest, 5 kilograms defendant admitted selling earlier, and $2 million recovered by authorities during two traffic stops. The Seventh Circuit found that the court’s relevant conduct findings concerning the $2 million were insufficient because they did not address the relationship between the money and the offense of conviction. The court properly found that the $2 million was drug proceeds, because this is what defendant told a co-conspirator during a recorded conversation. And a court may estimate drug quantity by converting proceeds into a corresponding amount of drugs. Nevertheless, to hold a defendant accountable for drug quantities from unconvicted conduct, the judge must explicitly find that the unconvicted activities bore the necessary relation to the conviction offense. The court here made no finding that the drug transactions underlying the proceeds were part of the same course of conduct or common scheme or plan as the offense of conviction. U.S. v. Patel, 131 F.3d 1195 (7th Cir. 1997).

7th Circuit finds insufficient justification to include five-year-old drug transactions. (765) In 1994, defendant and a co-conspirator purchased 700 pounds of marijuana from a confidential informant. He claimed it was error to include as relevant conduct drug transactions between the conspirators and the informant that occurred between 1986 to 1989, five years before the charged conspiracy. The Seventh Circuit agreed, holding that the record contained insufficient information to include the earlier transactions. The district court concluded, in summary fashion, that the total amount involved was 2000 pounds, without addressing or making a specific determination as to whether the earlier conduct constituted relevant conduct. The record contained little information about the regularity or the similarity of the transactions. All it showed was that the same two defendants and the informant were dealing marijuana on a smaller scale in 1986-1989. There was no evidence that the district court considered this matter at all, despite defendant’s objection. U.S. v. Mankiewicz, 122 F.3d 399 (7th Cir. 1997).

7th Circuit says no findings were necessary under § 3E1.1(b)(1) where defendant sought reduction under (b)(2). (765) The district court granted defendant a two level acceptance of responsibility reduction under § 3E1.1(a), but did not grant an additional one level reduction under § 3E1.1(b). Defendant noted that the court’s findings only went to subsection (b)(2), holding he did not timely notify the government of his intention to plead guilty. He contended that the court erred in refusing the reduction without addressing his eligibility under subsection (b)(1) for timely providing the government complete information regarding his involvement in the offense. The Seventh Circuit found the court was not required to make § 3E1.1(b)(1) findings because defendant only requested the district court make the reduction under subsection (b)(2). A court is not obliged to make explicit findings on issues not argued by the defendant. Moreover, the court adopted the findings of the PSR, which found that defendant did not timely provide complete information regarding his involvement in the offense. U.S. v. Underwood, 122 F.3d 389 (7th Cir. 1997).

7th Circuit holds that court’s findings on managerial role satisfied Rule 32(c)(1). (765) Defendant challenged a managerial role enhancement, arguing that the district court did not make sufficient findings as required by Rule 32(c) and that the court improperly relied on testimony presented at a co-conspirator’s trial. The Seventh Circuit held that the court’s findings complied with Rule 32(c). In overruling defendant’s objection to the PSR, the court noted that it considered all of the evidence, including information from a co-conspirator’s trial, the documents that were presented, and defendant’s own statement. A sentencing court may discharge its duty under Rule 32(c)(1) by making reference to the PSR, especially if the defendant has merely objected to the report without offering any evidence of inaccuracy. Defendant did not take issue with any specific part of the PSR. The court could properly rely on information from a co-defendant’s trial. The testimony considered by the court dealt specifically with defendant’s role in the conspiracy. U.S. v. Pippen, 115 F.3d 422 (7th Cir. 1997).

7th Circuit upholds findings based on adoption of PSR. (765) Defendant argued that the district court did not state with sufficient specificity the basis for its finding that he played a leadership role in a drug conspiracy. The Seventh Circuit held that the court’s findings were sufficient because it adopted the PSR’s finding. Where the defendant objects but does not offer any evidence of the PSR’s inaccuracy, the rule that the court must make findings as to disputed issues can be satisfied by reference to the PSR. The court here heard all the testimony and other evidence at trial, it relied on the PSR, and heard additional evidence when a deputy testified in support of the PSR at sentencing. Defendant did not offer any contradictory evidence at this hearing. U.S. v. Hall, 109 F.3d 1227 (7th Cir. 1997).

7th Circuit affirms managerial enhancement based on adoption of PSR’s findings. (765) The PSR concluded that defendant was the most culpable of 10 co-defendants since he had obtained all of the cocaine and redistributed it to the other nine defendants. Defendant argued that he was a mere distributor and nothing else. The Seventh Circuit affirmed a leadership enhancement because the evidence showed that defendant controlled couriers who delivered the cocaine to his buyers. Buyers would page defendant and someone other than defendant would deliver the cocaine for defendant. The court’s findings satisfied Rule 32. Rule 32 can be satisfied in certain instances by making reference to the PSR. This is especially so where the defendant has merely objected to the report, as here, without offering evidence of any inaccuracy in that report. When the court overruled defendant’s objection, it did so in a context that showed that it was adopting as its own the factual findings in the PSR. U.S. v. McKinney, 98 F.3d 974 (7th Cir. 1996).

7th Circuit holds that court’s findings satisfied Rule 32. (765) Defendant argued that the district court violated Fed. R. Crim. P. 32(c)(1) by failing to make adequate findings concerning two of his objections to the PSR. The Seventh Circuit held that the court’s findings satisfied Rule 32. In his brief defendant erroneously asserted that the court violated Rule 32(c)(3)(D), which was amended in December 1994 and redesignated as Rule 32(c) (1). Old Rule 32(c)(3)(D) required findings only with respect to factual objections. Defendant made legal objections (to the court’s failure to depart and the constitutionality of § 2D1.1(c)); therefore old Rule 32(c)(3)(D) did not require explicit written findings. However, new Rule 32(c)(1) requires findings for all “matters controverted.” The court’s findings here satisfied Rule 32(c)(1). No magic words are required, so long as the court actually resolves the disputed issues on the record. U.S. v. Cureton, 89 F.3d 469 (7th Cir. 1996).

7th Circuit holds that court adequately resolved defendants’ objections. (765) Defendant argued that the district court failed to make detailed specific findings with respect to all of their objections to the PSR. The Seventh Circuit held that the court complied with Fed. R. Crim. P. 32(c)(3)(D). A court may satisfy the requirements of Rule 32 by adopting the factual findings and calculations contained in the PSR, provided that those findings are based on sufficiently reliable information. When a defendant fails to produce any evidence other than their own self-serving denials of the PSR’s accuracy, a district court can satisfy Rule 32 by adopting the findings of the PSR. In the absence of actual evidence controverting the PSR, the court was not required to conduct any further inquiry into the disputed sentencing issues. U.S. v. Taylor, 72 F.3d 533 (7th Cir. 1995).

7th Circuit holds that defendant’s bare denial was insufficient to rebut PSR. (765) The PSR concluded that defendant was responsible for 2,610 pounds of marijuana and $328,400 in laundered money. Over defendant’s objections, the judge wholly adopted the PSR, finding it accurate. The Seventh Circuit held that the district court properly adopted the PSR’s findings, since defendant presented no more than a bare denial. Generally, where a court relies on a PSR in sentencing, it is the defendant’s task to show the judge that the facts are inaccurate. A defendant cannot show that a PSR is inaccurate simply by denying the truth of those facts. The defendant may escape the burden of producing evidence only when the PSR contains nothing but a “naked or unsupported charge.” Here, however, an associate’s trial testimony and statements to investigators supported the PSR’s calculations. U.S. v. Mustread, 42 F.3d 1097 (7th Cir. 1994).

7th Circuit upholds organizer enhancement where defendant failed to challenge factual assertions in PSR. (765) Defendant challenged the district court’s finding that she was an organizer or leader of criminal activity because it was based on unsworn statements in her presentence report. The 7th Circuit found that the district court properly relied on unchallenged factual propositions in the presentence report. The absence of sworn testimony from which the factual material was derived did not matter; defendant was stuck with factual statements that she did not contest. The fact that her co-defendant may also have been a leader did not matter. A defendant need not be the creator of a criminal scheme or control all aspects of it in order to be an organizer or leader. U.S. v. Ivory, 11 F.3d 1411 (7th Cir. 1993).

7th Circuit holds mere denial insufficient to challenge supported allegations in PSR. (765) Defendant objected to the district court’s including certain drug quantities in his base offense level. However, defendant presented no evidence at his sentencing. Rather, he simply made challenges through the argument of counsel. The 7th Circuit found that unless the government’s allegations were unsupported, defendant’s objections would fail. A defendant who challenges factual allegations in the PSR has the burden of producing some evidence beyond a bare denial that calls the reliability or correctness of the alleged facts into question. The only time when a defendant can possibly succeed with a mere denial is in the case of a naked or unsupported charge. U.S. v. Rivera, 6 F.3d 431 (7th Cir. 1993).

7th Circuit holds that technical failure to comply with Rule 32 does not justify 2255 relief. (765) In a motion brought under 28 U.S.C. § 2255, defendant claimed that the sentencing court violated Fed. R. Crim. P. 32(c)(3)(D) by failing to resolve a factual dispute that arose during sentencing and failing to attach its finding to the presentence report. The 7th Circuit held that defendant’s claim was not cognizable, since a mere “technical” violation of Rule 32 cannot be corrected in a proceeding under section 2255. Defendant made no claim that the court’s failure to comply with Rule 32 violated due process. Basile v. U.S., 999 F.2d 274 (7th Cir. 1993).

7th Circuit finds no need for factual finding on undisputed matter. (765) Defendant was convicted of making false statements in his bankruptcy application. He claimed that the district court erred in refusing to make a factual finding on a calculation in the presentence report. Contrary to defendant’s argument, however, the 7th Circuit concluded that the calculation was not a loss figure for defendant’s offense, but rather an estimate of defendant’s total unreported assets. Since this figure was not in dispute, the district court did not abuse its discretion in refusing to make a factual finding on it at sentencing. U.S. v. Lerch, 996 F.2d 158 (7th Cir. 1993).

7th Circuit upholds refusal to hold evidentiary hearing concerning defendant’s role in the offense. (765) The 7th Circuit found that the district court did not abuse its discretion in denying defendant’s request for an evidentiary hearing concerning his role in the offense. Defendant received a copy of the PSR designating him as an organizer or leader well in advance of sentencing and submitted written arguments opposing the enhancement. The district court rendered its decision only after thorough consideration of the defendant’s and the government’s written submissions. The procedure complied with section 6A1.3. U.S. v. Cantero, 995 F.2d 1407 (7th Cir. 1993).

7th Circuit affirms reliance upon PSR where defendant presented only “bare denial” to challenge its accuracy. (765) Defendant argued that the district court’s perfunctory examination of his objections to the PSR violated due process and Rule 32. The 7th Circuit upheld the reliance upon the PSR, because defendant failed to produce any evidence challenging its reliability. A defendant who challenges factual allegations in the PSR has the burden of producing some evidence beyond a bare denial that calls the reliability or correctness of the alleged facts into question. Defendant presented no evidence at the sentencing hearing that would contradict the findings in the PSR, despite the sentencing court’s invitation. The factual allegations contained in the PSR were based upon hearsay evidence that the court deemed more reliable than defendant’s bare denial. U.S. v. Isirov, 986 F.2d 183 (7th Cir. 1993).

7th Circuit rules district court did not prejudge matter in dispute. (765) At sentencing, defendant argued that the drug quantity in his presentence report was erroneously based upon the testimony of his unreliable co-conspirator. The district court then suggested that if defendant took the stand to testify on this issue, it might become necessary to call the co-conspirator. The judge noted that he had seen the co-conspirator testify in a related case and found him “credible and impressive.” Defendant then declined to testify on his own behalf. The 7th Circuit rejected defendant’s claim that the district court denied him due process by prejudging the matter in dispute. The sentencing judge did not state that his mind was made up on the co-conspirator’s credibility. Although the judge stated that the co-conspirator was an impressive witness, he did not indicate that his mind was closed on this issue. U.S. v. Westbrook, 986 F.2d 180 (7th Cir. 1993).

7th Circuit remands for findings supporting drug quantity determination. (765) The presentence report said the conspiracy involved at least 50 kilograms of cocaine. Defendant objected and requested an evidentiary hearing. The district court, however, summarily adopted the conclusions in the presentence report. The 7th Circuit remanded because the district court failed to make findings supporting its conclusions and resolving defendant’s disputed issue of fact. Defendant’s sentence should reflect the kilograms involved in furtherance of the conspiracy, i.e., the amount which was known or reasonably foreseeable to the defendant. In determining the kilograms involved, the district court must give reasons, not mere conclusions. The record did not reflect that the court resolved defendant’s disputed issue of fact, and the government conceded at oral argument that the case should be remanded for a hearing to articulate the appropriate relevant conduct. U.S. v. Jackson, 983 F.2d 757 (7th Cir. 1993).

7th Circuit remands for limited purpose of attaching written findings as to contested factors. (765) The 7th Circuit rejected defendant’s claim that the district court failed to make a finding on his entrapment defense to the obstruction enhancement, as required by Fed. R. Crim. P. 32(c)(3)(D). The judge allowed defendant to testify on that precise issue at the sentencing hearing, and found that defendant had perjured himself in that testimony, thus indicating he did not believe defendant’s entrapment defense. However, merely attaching an addendum to the presentence report with the defendant’s objections did not satisfy Rule 32. A limited remand was necessary only to permit the attachment of the judge’s written determination of the disputed factors to the presentence report. U.S. v. Pless, 982 F.2d 1118 (7th Cir. 1992).

7th Circuit affirms despite district court’s failure to make written findings. (765) The 7th Circuit refused to remand the case for resentencing even though the district court failed to make written findings and attach them to the presentence report as required by Fed. R. Crim. P. 32(c)(3)(D). The rule serves two purposes: to protect a defendant’s due process rights by insuring his sentence is based on accurate information and to provide a clear record of the disposition and resolution of controverted facts in the presentence report. Remand is required only if the first purpose of the rule has been infringed. Here, there was no due process violation. A review of transcript revealed the district court allowed defendant the opportunity to present witnesses and arguments addressing the disputed factual matters, and the judge made findings of fact as to the amount of drugs involved. The case was remanded for the limited purpose of affording the district court an opportunity to make and attach written findings to the presentence report. U.S. v. Villasenor, 977 F.2d 331 (7th Cir. 1992).

7th Circuit affirms denial of acceptance of responsibility based on adoption of presentence report. (765) The 7th Circuit rejected defendant’s claim that the district court improperly failed to consider whether he was eligible for a reduction for acceptance of responsibility. The presentence report addressed defendant’s refusal to accept responsibility, and defendant failed to object to this portion of the presentence report. Although the district court did not consider a reduction for acceptance of responsibility (because it was not raised), the court adopted the factual findings in the presentence report. U.S. v. Shetterly, 971 F.2d 67 (7th Cir. 1992).

7th Circuit upholds requiring defendant to present rebuttal evidence to probation department. (765) Prior to sentencing, the district court advised defendant to submit all written objections to the presentence report to the probation department. Although he did provide certain generalized objections, he did not include any substantive evidence. At sentencing, defendant attempted to present corroborating evidence. The district court continued the hearing, directing defendant to provide all of his information to the probation department. At the continued sentencing hearing, defendant presented only his own testimony. The 7th Circuit rejected his claim that he was denied a fair sentencing hearing by being required to present his evidence to the probation department prior to the continued hearing. A district judge has discretion to determine the precise form of the defendant’s opportunity to contest prejudicial or inaccurate information contained in the presentence report. The court specifically addressed each factual inaccuracy alleged by defendant, and determined his testimony was not sufficiently credible to support his objections. U.S. v. Herrera, 948 F.2d 1046 (7th Cir. 1991).

7th Circuit reverses drug quantity determination because court failed to address specific objections. (765) Defendants’ presentence report concluded that they were each responsible for 24 kilograms of cocaine, resulting in a base offense level of 34. Defendants raised numerous challenges to the inclusion of approximately 13.5 kilograms of cocaine. If these objections had been successful, the offense level would have been reduced to 32. Without ruling on each objection, the district court concluded that the evidence supported an offense level of 34. The 7th Circuit remanded for resentencing, ruling that the district court’s refusal to “go through each allegation” violated Fed. R. Crim. P. 32(c)(3)(D). The district court’s general conclusion that defendants were involved with between 15 and 50 kilograms of cocaine made meaningful appellate review impossible. U.S. v. Jewel, 947 F.2d 224 (7th Cir. 1991).

7th Circuit refuses to remand despite failure to attach written findings to presentence report. (765) Defendant argued that the case should be remanded for resentencing because the district judge failed to make written findings regarding the disputed factual information in the presentence report. The 7th Circuit held that the district court appropriately found the disputed portions of the presentence report to be accurate. No remand was necessary even though the judge failed to attach a copy of those findings to the presentence report sent to the Bureau of Prisons. The court directed the United States Attorney to ensure that the judge’s findings were attached to presentence report before it was transmitted to the Bureau of Prisons. U.S. v. Musa, 946 F.2d 1297 (7th Cir. 1991).

7th Circuit finds no due process violation in district court’s failure to make tentative findings. (765) Defendant argued that his due process rights were violated by the district court’s failure to provide him, prior to sentencing, with tentative findings of fact as required by guideline § 6A1.3(b). The 7th Circuit found no due process violation. The caselaw interpreting § 6A1.3(b) does not rigidly require tentative findings. In this case, the district court “did more than simply comply with the basic policy underlying the Sentencing Guidelines and the Due Process Clause through its furnishing of the presentence report to [defendant] in a timely fashion, receiving his objections prior to hearing, allowing a full and complete opportunity to review and later to present extensive challenges [to] evidence and in resolving each and every factual question on disputed factual issues during an extended two-day sentencing hearing.” U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).

7th Circuit finds that defendant had opportunity to object to factors relied on in sentencing. (765) Defendant argued that the district court violated guideline § 6A1.3(b) by not giving him an opportunity to challenge its tentative findings and sentencing calculations. The 7th Circuit disagreed, finding that the record demonstrated otherwise. The district court had considered the arguments from both defendant and the government regarding disputed sentencing factors and allowed defendant to present evidence in mitigation. The 7th Circuit held that the defendant was accorded a full and fair hearing. Schetz v. U.S., 901 F.2d 85 (7th Cir. 1990).

8th Circuit holds that defendant’s failure to object to PSR’s finding was “dispositive.” (765) Police found a handgun and cocaine base in defendant’s car. He was convicted of being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1(b)(6)(B) for possession of the firearm in connection with a felony drug offense. The Eighth Circuit affirmed. The PSR stated that a police detective discovered 2.41 grams of cocaine base on the floor of defendant’s car, where the firearm was found, and recommended that the court impose a four-level sentence enhancement because defendant’s firearm “facilitated or had the potential to facilitate the possession of cocaine base.” Defendant did not object to the PSR. Defendant had argued that the court erred when it imposed the § 2K2.1(b)(6) enhancement without making a finding that the firearm facilitated the drug offense. However, defendant’s PSR included the express “facilitation” finding. Defendant’s failure to object to the PSR was dispositive. U.S. v. Humphrey, 753 F.3d 813 (8th Cir. 2014).

8th Circuit says objections to PSR were not sufficiently specific or clear. (765) Defendant pled guilty to being an unlawful drug user in possession of a firearm. The PSR recommended a § 2K2.1(b)(5) increase for trafficking in firearms. Paragraphs 23-26 of the PSR reported that defendant had provided several firearms to Charles, from whom defendant had purchased methamphetamine. Also, defendant had purchased numerous firearms, including a machine gun, from a local pawn shop, and the machine gun subsequently was found in Charles’s possession. Defendant argued on appeal that the district court should not have relied on the facts in paragraphs 23-26. The Eighth Circuit ruled that because defendant did not object to those paragraphs with the requisite specificity and clarity, the district court was permitted to rely on them at sentencing. Defendant did not contest the veracity of the facts in the PSR, but observed only that he had not admitted them by pleading guilty. However, the facts in paragraphs 23-26 were not based on defendant’s admissions, but on admissions by Charles and two other men. Defense counsel conceded at sentencing that Charles and the others had made those statements. U.S. v. Pepper, 747 F.3d 520 (8th Cir. 2014).

8th Circuit upholds firearm increase where defendant withdrew his objection to PSR. (765) Defendant pled guilty to being a felon in possession of a firearm. His PSR recommended an enhancement under § 2K2.1(b)(6)(B) for possessing the firearm in connection with another felony offense. Defendant objected, and the government in its sentencing memo told the court that the enhancement should not apply because its witnesses were unavailable. Nevertheless, before sentencing, defendant failed to object to the factual allegations in paragraphs 10, 12 and 13 of the PSR which provided factual support for the enhancement. At sentencing, defendant objected to those paragraphs, but when pressed by the court for his reasons, defense counsel withdrew the objections. The court then applied the firearm enhancement. The Eighth Circuit affirmed. Because defendant withdrew his objections to the factual statements in the PSR, the district court was permitted to rely upon them. This was true even though the parties agreed that the enhancement should not apply. U.S. v. Bowers, 743 F.3d 1182 (8th Cir. 2014).

8th Circuit says alleged failure to address defendant’s objection to drugs in PSR was harmless. (765) Defendant argued that the district court committed procedural error by failing to rule on his objections to the PSR’s calculation of the total amount of methamphetamine in his offense. Without addressing the merits, the Eighth Circuit found that any error was harmless because it did not affect the sentence. Defendant objected to paragraph 17 of the PSR, specifically the conversion of $1,344 seized during his January 19 arrest into 11.03 grams of methamphetamine. He did not object, however, to the amounts of meth attributed to him in paragraphs 7, 9, and 13, which made him accountable for at least 20.5 grams of meth. The base offense level for the amount of meth defendant did not object to (20.5 grams) was the same as for the amount of meth actually used in the PSR (31.53 grams). U.S. v. Freeman, 718 F.3d 1002 (8th Cir. 2013).

8th Circuit holds that court properly accepted PSR’s criminal history findings where defendant failed to make specific objections. (765) Before sentencing, defendant’s attorney notified the probation office of his objections to the PSR, including that he “object[ed] to all of the factual statements concerning his criminal history, your conclusions as to his identity, and your calculation of the criminal history.” At sentencing, the attorney generally stated that he renewed his objections. The only specific objection he made that defendant’s California burglary conviction should not be counted because it was not a felony. The Eighth Circuit held that because defendant failed to specifically object to most of the PSR’s criminal history calculations, the district court properly accepted those findings. Aside from his specific objection to the burglary conviction, defendant’s attorney merely renewed his general, blanket objection instead of providing a specific basis for refuting the PSR’s findings. As for the burglary conviction, the district court properly relied on the state court’s docket sheet or the plea agreement to find that the burglary was a felony. U.S. v. Rodriguez, 711 F.3d 928 (8th Cir. 2013).

8th Circuit rejects obstruction increase where no evidence that defendant ordered assault on inmate. (765) The district court applied a two-level obstruction of justice increase to defendant for directing the assault of a federal inmate. However, the only reference in the record about this matter was contained in a bench conference that occurred at trial between the district judge and the attorneys. The government’s attorney stated that an inmate had been assaulted by an associate of defendant, and the judge stated that he was aware that an assault had been threatened but was unsure of whether the assault had occurred. Defendant objected to the PSR’s inclusion of an enhancement based on the assault. No evidence was admitted at the hearing or at trial indicating whether an assault even occurred or whether it was ordered by defendant. The Eighth Circuit held that the obstruction enhancement was improper. The PSR was not evidence. The government submitted no evidence to support the court’s finding that defendant ordered an assault. U.S. v. Mann, 701 F.3d 274 (8th Cir. 2012).

8th Circuit affirms psychological injury departure based on unobjected-to facts in PSR. (765) Defendant pled guilty to assault with a dangerous weapon, and received departures under four separate guidelines, including § 5K2.3, for serious psychological injury. The Eighth Circuit held that the unobjected-to facts presented in the PSR adequately supported the departure. The PSR gave a detailed account of the assault, without objection from defendant. It related how defendant assaulted his companion at their home, in front of their children (all of whom were under nine). Defendant’s violent acts caused his children to try to intervene on behalf of their mother, but they were assaulted themselves. Defendant then violently and repeatedly threatened his companion, telling her to choose which child he should kill first, an exchange the children likely heard. The PSR described how this event caused the children extreme psychological difficulties requiring counseling. These specific findings sufficiently supported an upward departure, and were also corroborated by testimony. The district court did not abuse its discretion in departing under § 5K2.3. U.S. v. White Twin, 682 F.3d 773 (8th Cir. 2012).

8th Circuit approves obstruction increase for sending numerous documents to officials to retaliate against them. (765) Defendant participated in a scheme that marketed and sold fraudulent “diplomatic immunity” cards. The PSR listed two factual bases to support an obstruction of justice enhancement: (1) that some members of the movement killed the pet of a law enforcement officer to intimidate and retaliate against the officer; and (2) that defendant sent numerous pro se documents to officials prior to trial, in violation of a court order, in order to intimidate or retaliate against the officials. The Eighth Circuit upheld the enhancement. The panel agreed with defendant that the court could not have based the enhancement on the conduct involving the official’s pet, since defendant objected to this PSR fact, and the government did not put on any evidence at sentencing to support this allegation. However, defendant did not object to the factual allegations regarding the documents sent to the U.S. Attorney and Marshal, and admitted sending them. Under these circumstances, the district court could properly consider those facts. This pretrial conduct was sufficient to apply the obstruction enhancement. U.S. v. Goodyke, 639 F.3d 869 (8th Cir. 2011).

8th Circuit upholds increase where defendant acknowledged facts and did not object to PSR’s findings. (765) Defendant pled guilty to charges related to identity theft. The Eighth Circuit upheld a four-level increase under § 2B1.1(b)(2)(B) for defrauding between 50 and 250 victims. First, defendant acknowledged in his plea agreement that he was responsible for an offense involving 50 or more but fewer than 250 victims. Second, he failed to object to the PSR’s factual finding that 112 accounts found on defendant’s computer were compromised, resulting in an actual loss of over $100,000. Third, defendant ignored a recent amendment to the Guidelines defining a “victim” as “any individual whose means of identification was used unlawfully or without authority.” See note 4(E)(ii) to § 2B1.1. U.S. v. Datcu, 627 F.3d 1074 (8th Cir. 2010).

8th Circuit finds no plain error in drug quantity finding. (765) At defendant’s sentencing for conspiracy to distribute and possess with intent to distribute 50 grams or more of crack cocaine, the district court found that the conspiracy involved at least a kilogram and a half of cocaine. The court used that amount to set defendant’s offense level under § 2D1.1. On appeal, defendant argued that the district court committed plain error, in violation of Federal Rule of Criminal Procedure 32(i)(3)(B), by failing to specify the basis for its drug quantity determination. The Eighth Circuit held that the district court adequately supported its finding of quantity by stating that it reached its decision based on the testimony presented at defendant’s sentencing hearing. U.S. v. Cosey, 602 F.3d 943 (8th Cir. 2010).

8th Circuit says government had burden to prove prior murder was not self-defense. (765) Defendant was convicted of two counts of assault with a deadly weapon. In departing upward, the district court relied heavily on a dismissed murder charge, as permitted by §5K2.21. Defendant presented evidence that she acted in self-defense, but the district judge rejected the argument without making any findings. The Eighth Circuit reversed, ruling that once the issue is called into question the government bears the burden of proving an absence of self-defense by a preponderance of the evidence. This trial rule also applies at sentencing. From the record, it was unclear whether the court found that the government proved a lack of self-defense, or that defendant failed to show she acted in self-defense. U.S. v. Azure, 536 F.3d 922 (8th Cir. 2008).

8th Circuit says defendant admitted amount of loss when he did not object to PSR. (765) Defendant challenged the district court’s sentencing enhancements under Blakely v. Washington, 542 U.S. 296 (2004). The Eighth Circuit found that the objection to the loss enhancement was without merit. A fact in a PSR not specifically objected to is a fact admitted by the defendant for purposes of Booker. U.S. v. McCully, 407 F.3d 931 (8th Cir. 2005). Defendant’s PSR indicated that he fraudulently obtained $293,112.62 through his illicit transactions. Although he objected to having received about $77,000 of that amount, the uncontested total amount of fraud still exceeded $200,000. Thus, for Booker purposes, defendant admitted to the amount of loss triggering the 12-level enhancement. U.S. v. Crawford, 414 F.3d 980 (8th Cir. 2005).

8th Circuit says court properly adopted restitution amount in PSR where defendant did not object until sentencing hearing. (765) Defendant was convicted of assault with intent to commit murder. The district court adopted the PSR’s recommended restitution of $39,368.20, which was based on a Victim Impact Statement. Defendant objected to this amount for the first time at sentencing. The Eighth Circuit held that because defendant did not timely object to the restitution amount contained in the PSR, the district court did not err in adopting it. Under Rule 32(f)(1), a defendant must provide written objection to a PSR within 14 days after receiving it. A district court may regard as true facts contained in the PSR to which no specific objection is made. An untimely objection to a fact in the PSR does not change the fact’s “undisputed” status. U.S. v. May, 413 F.3d 841 (8th Cir. 2005).

8th Circuit remands for development of record as to loss where government presented no evidence. (765) Defendant was convicted of various counts involving a home health care fraud scheme. The PSR recommended a loss amount in excess of $ 1 million. The government responded by indicating it was recommending a loss of $122,336. This was consistent with the plea agreement, which recommended a ten-level enhancement, which corresponded to a loss between $120,000 to $200,000. The plea agreement recited that defendant disputed this loss amount. The district court found the loss was $122,336. However, the Eighth Circuit was unable to determine from the record the basis for this finding. After the court stated it was imposing the amount mentioned in the PSR, defendant’s attorney stated that she disputed that amount and set forth the reasons for the dispute. The government presented no evidence to support the $122,386 figure. Accordingly, the panel remanded for further development of the record as to the amount of loss. U.S. v. Liveoak, 377 F.3d 859 (8th Cir. 2004).

8th Circuit holds that court erred in relying on contested portions of PSR. (765) Defendant objected to paragraphs 10 through 15 of the PSR, which set forth the offense conduct. In denying defendant a requested minor-role reduction, the court noted that there was not an adequate basis in the plea colloquy to establish that defendant was a minor participant “in the offense conduct under § 3B1.2. And I include not only the charged conduct but the relevant conduct set forth in the Presentence Report.” Because the district court referenced the contested portion of the PSR when it denied defendant’s request for a minor-role reduction, the Eighth Circuit remanded for resentencing. The panel directed the court to not rely on disputed portions of the PSR for factual findings. U.S. v. Morehead, 375 F.3d 677 (8th Cir. 2004).

8th Circuit finds insufficient evidence to support use of sexual abuse guideline. (765) Defendant unlawfully touched a 15-year-old girl while she was passed out in her bedroom after a night of heavy drinking. The abusive sexual contact guideline, § 2A3.4, directed the court to apply § 2A3.1, if the offense conduct constituted criminal sexual abuse, as opposed to abusive sexual conduct. The critical difference here between criminal sexual abuse and abusive sexual contact turned on whether defendant touched the victim’s genitalia directly or through her clothing. Although the PSR noted that defendant pulled the victim’s pants down and touched her vagina with his fingers, defendant objected to this portion of the PSR. At sentencing, an FBI agent testified that defendant admitted that he rubbed the victim’s vagina with his fingers. The Eighth Circuit found insufficient evidence to support the use of the criminal sexual abuse guideline. The district court relied not only on the agent’s testimony in making the critical determination that defendant directly touched the victim, but also relied on the objected-to paragraphs of the PSR that were not supported by any evidence in the record. The district court’s factual finding that defendant committed a “sexual act” was tainted by the erroneous finding that defendant removed the victim’s pants. However, there was no evidence that defendant removed her pants other than the PSR, which is not evidence. U.S. v. Poor Bear, 359 F.3d 1038 (8th Cir. 2004).

8th Circuit holds that defendant adequately preserved objection to loss calculation. (765) Defendant pled guilty to mail fraud based on payments made by Blue Cross to his company for consulting services that were never performed. He argued that the court’s $585,559 loss amount improperly included invoices for legitimate work his company performed for Blue Cross. The government argued that defendant waived the argument by not objecting on this basis before the district court, but the Eighth Circuit held that defendant adequately preserved the issue. Defendant did not file written objections to the PSR, but he did file a position paper in which he noted that the loss amount in the PSR did not account for the fact that his company provided legitimate services to Blue Cross. At sentencing, his counsel raised this issue again, to which the court responded that the probation officer had accounted for that issue and the loss had “been adjustment appropriately” to which defense counsel responded “I just wanted to make sure.” This was based on the amended addendum to the PSR where the probation officer advised the court that $585,559 was “the total amount of the fraudulent invoices.” However, in the face of the objection, the statements in the PSR and its Addendum were no longer sufficient, and the court erred in basing its loss finding solely on the assertions of fact contained in the PSR without taking additional evidence. U.S. v. Camacho, 348 F.3d 696 (8th Cir. 2003).

8th Circuit holds that objections were not sufficiently specific to preclude reliance on PSR. (765) The evidence presented at sentencing alone was not sufficient to support a managerial role increase under § 3B1.1(c). However, the PSR cited evidence that defendant exercised decision-making authority over another conspirator, directed the amount of drugs sold, and had drug proceeds turned over to him. In general, a PSR is not evidence and is not a legally sufficient basis for making findings on contested issues of material fact. However, defendant did not object specifically to the PSR’s findings that he was a manager, nor did he object to those portions of the PSR that outlined the evidence that formed the basis for his sentence enhancement. He did, however, object to the conclusion in the PSR that he was ineligible for safety valve relief. Defendant asserted that this general objection served as an objection to all of the underlying criteria for safety valve relief, including the issue of managerial role. However, defendant’s managerial role was not the only basis for denying safety valve relief, and the Eighth Circuit concluded that defendant’s objection was not sufficiently specific to preclude the court’s reliance on the PSR. Defendant’s attorney was given numerous opportunities to contest the managerial role criterion, but did not do so. The unobjected-to portions of the PSR contained sufficient facts from which the district court could conclude that defendant met the criterion for a managerial role adjustment. U.S. v. Quintana, 340 F.3d 700 (8th Cir. 2003).

8th Circuit holds that court’s adoption of PSR findings did not satisfy Rule 32(c). (765) In calculating defendant’s criminal history score, the district court relied solely on the PSR. Both before and during sentencing, defendant objected that the PSR wrongly counted two municipal convictions and a 1992 juvenile adjudication in his criminal history. He argued that the district court was required to do more at sentencing than adopt the factual findings proposed by a probation officer in a PSR when those factual findings are in dispute. The Eighth Circuit agreed. Although the Sentencing Guidelines do not mandate a full evidentiary hearing when a defendant disputes a PSR’s factual representation, some investigation and verification of the disputed statements in the PSR is required. The government presented no evidence regarding either the municipal convictions or the juvenile adjudications other than the statements offered by the probation officer in response to the court’s questions. The probation officer was not under oath at the sentencing hearing and defendant’s counsel did not have the opportunity to cross-examine him. This is not a sufficient basis for resolving the factual disputes over the PSR’s accounts of the prior convictions. U.S. v. Stapleton, 268 F.3d 597 (8th Cir. 2001).

8th Circuit upholds resolution of drug quantity controversy. (765) Relying on U.S. v. Candie, 974 F.2d 61 (8th Cir. 1992), defendant attacked the sufficiency of the district court’s findings of controverted fact required by Rule 32(c)(1). Candie found that a judge’s statement regarding its use of allegedly unreliable testimony did not adequately explain why the court chose to credit that testimony. The Eighth Circuit found this case distinguishable from Candie, and held that the court satisfied Rule 32(c)(1). Unlike the Candie court, the district court held an extensive sentencing hearing at which the government presented extensive evidence by an FBI agent regarding drug quantities associated with cases in which defendant served as an informant. In response to defendant’s objection to the drug quantity determinations in the PSR, the court threw out the drug amounts associated with two cases, finding them too unreliable. The court then made its drug quantity findings based on a preponderance of the evidence. Defendant also complained that no copy of the court’s findings of controverted fact were attached to the PSR, as required under Rule 32(c)(1). Since the panel could not determine from the record whether this requirement had been fulfilled, it remanded to the district court solely to provide the opportunity to comply with this provision of Rule 32. U.S. v. Russell, 234 F.3d 404 (8th Cir. 2000).

8th Circuit holds that district court failed to resolve contested factual statement in PSR. (765) Defendant’s written objection to his PSR stated that a § 2K2.1(b)(4) stolen firearm enhancement was “not warranted either by the facts or the law, and [defendant] objects to any facts contained in the presentence investigation upon which those enhancements are based.” This triggered the district court’s obligation to make a factual finding regarding whether the shotgun was stolen if the enhancement was to be applied. In making its finding, the district court was required to “do so on the basis of evidence and not the presentence report,” because “the presentence report is not evidence and not a legally sufficient bas[i]s for making findings on contested issues of fact.” In the present case, it was not clear that the district court considered any evidence beyond the bald assertion in the PSR that the shotgun “was confirmed stolen from Sacramento, California.” Thus, the Eighth Circuit vacated defendant’s sentence and remanded for a factual determination by the district court and resentencing. U.S. v. Arrington, 215 F.3d 855 (8th Cir. 2000).

8th Circuit upholds reliance on PSR where defendant did not object to facts. (765) Defendant argued that the district court erred when it used the facts from his PSR as the basis for imposing a § 2F1.1(b)(2)(A) enhancement for more than minimal planning. In a sentencing memo given to the district court, defendant asserted that he had not taken any significant steps to plan or conceal his crime, there was no repetition or series of crimes, and there was no elaborate scheme to commit the fraud. He contended that because he objected to the PSR, the court could not rely on it as the basis for imposing the enhancement. Because defendant objected not the facts themselves but to the PSR’s recommendation based on those facts, the Eighth Circuit ruled that the district court did not err in relying on the PSR’s allegations of fact in sentencing defendant. Rule 32(c) requires a sentencing court to rule on any unresolved objections to a PSR. However, unless a defendant objects to a specific factual allegation in the PSR, the court may accept that fact as true for sentencing purposes. Defendant’s vague complaint about a “lot of facts” in the government’s brief was insufficient to entitle him to a hearing. U.S. v. Moser, 168 F.3d 1130 (8th Cir. 1999).

8th Circuit holds court erred in relying on disputed information. (765) When police arrested defendant, they found 2.5 grams of cocaine base on a coffee table and 33 grams of cocaine base on his person. When the PSR attributed both these amounts to defendant for sentencing purposes, he objected to the inclusion of the cocaine base found on the table. He stated that the other occupants of the apartment were drug dealers and the 2.5 grams belonged to one of them. The PSR reported that defendant was the only person in the apartment dealing drugs. The district court attributed the disputed 2.5 grams to defendant based on “all of the evidence contained in the [PSR].” The Eighth Circuit held that the district court may have improperly relied on disputed information from the PSR, i.e. that defendant was the only drug dealer occupying the apartment. A district court may not rely on facts contained in a PSR if the defendant contests those facts. U.S. v. Garrett, 161 F.3d 1131 (8th Cir. 1998).

8th Circuit holds that credibility findings met Rule 32’s standards. (765) Defendants challenged the drug quantity findings in the PSR. The district court overruled defendants’ objection to the PSR’s drug quantity calculations and attributed more than 150 kilograms of cocaine to each defendant. The Eighth Circuit held that the district court made adequate findings under Rule 32 to support its drug quantity findings. The government established drug amounts for each defendant through the trial testimony of numerous witnesses. The district court expressly found the witnesses were credible. Witness credibility is an issue for the sentencing judge that is virtually unreviewable on appeal. Although it would be preferable for the court to specify the basis for its drug quantity findings, the court met Rule 32’s standard when it made its credibility findings and overruled defendants’ objections. U.S. v. Jones, 160 F.3d 473 (8th Cir. 1998).

8th Circuit affirms role increase even though both defendant and government objected. (765) Defendant was convicted of drug charges. The PSR recommended a § 3B1.1(a) leadership enhancement, but both defendant and the government objected because the government had agreed, as part of the plea agreement, not to seek the enhancement. The district court overruled the objections of both parties and applied the enhancement. Defendant argued that this was an abuse of discretion because the government bears the burden of proof on role enhancements, and the government introduced no evidence to support the enhancement. The Eighth Circuit ruled that the district court properly applied the enhancement based on its independent consideration of the evidence at sentencing. Nothing in the guidelines prevents a court from using its discretion to determine that sufficient evidence exists to support an enhancement when that enhancement is recommended in the PSR. U.S. v. Milton, 153 F.3d 891 (8th Cir. 1998).

8th Circuit rules court should not have relied on disputed part of PSR to find loss. (765) Defendant persuaded friends and relatives to allow him to invest money for them. He was convicted of 13 counts of mail fraud after he used his clients’ money for gambling and other personal expenses. He challenged the court’s inclusion in the fraud loss of $99,984 that was wired to his account from a Shanghai bank. The PSR found that the bank was an offshore investor who was defrauded, even though no government witness identified the bank at trial. Defendant timely objected to this PSR finding. The district court overruled defendant’s objection because “relevant conduct for purposes of sentencing can mean things other than occurred at trial.” The Eighth Circuit ruled that the district court improperly relied on a disputed portion of the PSR. A PSR to which the defendant has objected may not be evidence at sentencing. U.S. v. Shoff, 151 F.3d 889 (8th Cir. 1998).

8th Circuit says court erred in basing sentence on disputed drug quantity findings in PSR. (765) The Eighth Circuit ruled that the district court erred in imposing a sentence based upon disputed findings in the PSR without making a specific independent finding upon the court’s own review of the evidence. There was no indication in the record that the district court made a quantity determination based on the evidence at trial rather than the disputed PSR. A specific quantity determination was necessary to determine which, if any, statutory minimum sentence applied¾a defendant with two prior drug felony convictions is subject to mandatory life imprisonment under 21 U.S.C. § 841(b)(1) (A)(viii) only if the drug trafficking offense involved one kilogram or more of a mixture or substance containing a detectable amount of methamphetamine or 100 grams or more of pure methamphetamine. U.S. v. Ortega, 150 F.3d 937 (8th Cir. 1998).

8th Circuit relies on witness who saw 9 ounces of crack despite conflicting testimony. (765) Defendant was convicted of a crack cocaine conspiracy. At trial, a witness testified that he purchased crack cocaine from defendant on a specific occasion and, during the course of this transaction, observed a total of 9 ounces of crack. At sentencing, defendant attacked the witness’s credibility by presenting the testimony of various residents of the house in which defendant allegedly displayed the 9 ounces of crack. Each resident testified that the witness was never in their home. The Eighth Circuit held that the district court did not err in attributing to defendant the nine ounces of crack testified to by the witness. The court, faced with conflicting testimony, did not expressly make a credibility finding, but it was apparent that the court chose to credit the witness’s testimony regarding the 9 ounces of crack. Although an express credibility finding would have been preferable, there was no violation of Rule 32(c)(1) because the court’s assessment of witness credibility was evident. U.S. v. Moss, 138 F.3d 742 (8th Cir. 1998).

8th Circuit finds stipulated facts established managerial role. (765) Defendant objected to the PSR’s characterization of her as a manager in a Medicare fraud conspiracy. The district court did not make written findings regarding these objections, but did find during the sentencing hearing that defendant was a manager. The Eighth Circuit affirmed because the stipulated facts in defendant’s plea agreement supported the managerial enhancement. Defendant stipulated that she was the administrator of the corporation involved, she submitted the fraudulent reports, she submitted false invoices, and she wrote two checks to her nephew, purportedly for computer expenses, which he endorsed and redeposited into the corporation’s checking account. The stipulation demonstrated defendant’s coordinating role in the enterprise. Most telling was defendant’s fraudulent transaction with her nephew, in which, acting as administrator, she attempted to deceive auditors and defraud the Medicare program. Moreover, given her husband’s admittedly minor role, it was highly unlikely that the scheme could have succeeded without defendant’s close supervision. U.S. v. Mayer, 130 F.3d 338 (8th Cir. 1997).

8th Circuit says court erred in rejecting as “irrelevant” defendant’s testimony about lab capacity. (765) Police seized an operational methamphetamine laboratory from defendant’s residence. A chemist who analyzed defendant’s lab testified that it was capable of producing 0.75 grams of methamphetamine from one gram of ephedrine. A certified lab investigator testified that he believed the .75 gram figure was appropriate based on defendant’s experience as a cook, the seized evidence, and information others had given regarding the quantity of methamphetamine defendant was dealing. Defendant testified that although he had been cooking methamphetamine for 4 to 5 years, he had never yielded .75 of a gram from one gram of ephedrine, and that his usual yield was 0.25 grams. The court adopted the government’s position and found defendant’s testimony “irrelevant.” The Eighth Circuit disagreed. The court could have found defendant’s testimony on methamphetamine yield not credible, but the court did not make such a finding. The court erroneously turned the inquiry into what an average cook was capable of yielding, not what defendant could have produced based on the seized chemicals. U.S. v. Cole, 125 F.3d 654 (8th Cir. 1997).

8th Circuit finds court did not consider disputed information at sentencing. (765) Defendant pled guilty to being an accessory after the fact to a bank robbery. He contended that the district court violated Rule 32(c)(1) by considering disputed information in setting his sentence at the high end of the guideline range. The Eighth Circuit found that the district court sufficiently indicated that it was not going to consider the controverted matters. It found that the seriousness of defendant’s undisputed conduct—driving the getaway car—justified a sentence at the top of the range for the accessory charge. U.S. v. Gooder, 124 F.3d 985 (8th Cir. 1997).

8th Circuit finds court did not satisfy Rule 32(c)(3)(D) in finding drug quantity. (765) At sentencing, defendant objected to the quantity of drugs attributed to him and requested an evidentiary hearing. The judge admitted that the trial testimony regarding quantity was uncertain because only defendant’s guilt or innocence was at issue. The judge also expressed concern that his recollections of the trial testimony might not constitute a sufficient record for substantiating a sentence. After further argument and a brief recess, the judge made a factual finding attributing five kilograms to defendant, based on the judge’s recollection of trial testimony. The Eighth Circuit held that the court did not comply with Rule 32(c)(3)(D)’s strict requirement that the court make findings that explain controverted issues. The judge made no specific findings and even admitted that the record did not justify his fact finding. U.S. v. Granados, 117 F.3d 1089 (8th Cir. 1997).

8th Circuit holds that court’s findings satisfied minimum requirements of Rule 32(c)(1). (765) Defendant argued that the district court failed to make the requisite findings with respect to the quantity of drugs attributable to him, his role in the offense and his obstruction of justice. The Eighth Circuit held that the court’s findings satisfied the minimum requirements of Rule 32(c)(1). The trial court acknowledged defendant’s objections to the PSR, expressly rejected them, and stated that it did so after hearing all the evidence presented and reviewing its notes. Although specific references to individual pieces of trial testimony would have been helpful, they were not necessary. U.S. v. Grajales-Montoya, 117 F.3d 356 (8th Cir. 1997).

8th Circuit has no authority where correction would not affect sentence. (765) Defendant challenged the district court’s refusal to grant him either a § 3E1.1 reduction or a § 3B1.2 reduction. The Eighth Circuit refused to review the matter because even if the court had granted both reductions, it would not affect defendant’s sentence. A mandatory minimum sentence of 10 years overrode the 78-98 month guideline range applicable without the corrections. There is no need to address an allegedly erroneous computation where a correction will not affect a defendant’s sentence. U.S. v. Guerrero-Cortez, 110 F.3d 647 (8th Cir. 1997).

8th Circuit permits findings to be based on trial record rather than holding evidentiary hearing. (765) Defendant complained that the district court incorrectly adopted the findings of the PSR without receiving additional evidence. The Eighth Circuit found no error. Defendant’s counsel lodged only a general objection to the report and acknowledged that he was not raising anything that would require an evidentiary hearing. A sentencing court need not hold an evidentiary hearing if the defendant fails to pursue objections to the PSR. Furthermore, the sentencing judge also presided over defendant’s trial. In such a case, the court is not required to hold an evidentiary hearing to resolve factual objections, and may instead base its findings of fact on the trial record. U.S. v. Wiggins, 104 F.3d 174 (8th Cir. 1997).

8th Circuit rejects need for evidentiary hearing to resolve drug quantity dispute. (765) Defendant complained that he was sentenced without an evidentiary hearing concerning his challenge to the PSR’s drug quantity determination. He failed to move for an evidentiary hearing as required by local rule, although in his position paper for sentencing he noted that the dispute required an evidentiary hearing. The Eighth Circuit held that even if it overlooked defendant’s failure to comply with the local rule, an evidentiary hearing was still not required. Defendant was correct that the PSR is not a legally sufficient basis for making findings on contested issues of material fact. However, at sentencing, the district court made it clear that it was relying on evidence and testimony from the trial, and on the jury’s verdict. The jury found defendant guilty beyond a reasonable doubt of the conduct on which defendant’s sentence was based, and the court heard testimony at trial concerning the drug quantities involved with that conduct. U.S. v. Delpit, 94 F.3d 1134 (8th Cir. 1996).

8th Circuit finds drug quantity findings sufficient to satisfy Rule 32. (765) Defendant contended that he was only responsible for the 3.56 grams of crack seized from him, rather than the 500 grams to 1.5 kilograms attributed to him by the district court. The Eighth Circuit upheld the court’s findings. A co‑conspirator testified that defendant had brought 10 ounces of crack to Nebraska in June 1994, and another co‑conspirator testified that defendant said he was planning to bring back half a kilogram to five kilograms in July 1994. Moreover, three other witnesses testified that they had seen defendant in possession of crack at various times during the summer of 1994. The district court satisfied the minimal requirements of Rule 32(c)(1) to resolve disputes by stating that it rejected all of defendant’s sentencing objections and concluded that the PSR was correct in all respects. The court expressly stated its reliance on the testimony presented at trial. Although it would have been preferable to specifically refer to the trial testimony relied upon, the minimum requirements of Rule 32 were met. U.S. v. Scott, 91 F.3d 1058 (8th Cir. 1996).

8th Circuit finds court’s statement crediting trial testimony satisfied Rule 32. (765) Defendant challenged the attribution to her of 30.21 grams of crack cocaine, arguing that the district court failed to make a specific finding as required by Rule 32(c)(1). The Eighth Circuit held that the trial court’s statement that it credited the trial testimony with respect to those 30.21 grams satisfied Rule 32(c)(1). Although the court could have been more explicit that it was making a finding for sentencing purposes, the statement was adequate. U.S. v. Brown, 91 F.3d 1109 (8th Cir. 1996).

8th Circuit says court may rely on evidence from trial to resolve disputed matters. (765) When a defendant objects to statements in the PSR, the government bears the burden of proving any disputed enhancement factors. Defendant complained that the government did not satisfy its burden because the trial court did not hold an evidentiary hearing before sentencing. The Eighth Circuit held that the district court properly based its findings on evidence presented at trial, even though no additional evidence or testimony was introduced at sentencing. U.S. v. Elliott, 89 F.3d 1360 (8th Cir. 1996).

8th Circuit finds court did not rely on contested facts to impose use of force enhancement. (765) Defendant pled guilty to aggravated sexual abuse. The Eighth Circuit affirmed a § 2A3.1(b)(1) enhancement for using force and threats to commit the offense. The district court did not rely on contested facts from the PSR. Defendant objected to the factual statements in paragraphs four and five of the PSR. The district court relied on the unchallenged factual allegations in paragraphs six, seven and ten, which showed that defendant forced the victim to perform various sexual acts, that he threatened her with retaliation if she told anyone about the abuse, and that the victim feared retaliation by defendant. The use of force enhancement was proper. U.S. v. LaRoche, 83 F.3d 958 (8th Cir. 1996).

8th Circuit says PSR is not evidence when facts are challenged by defendant. (765) Defendant pled guilty to abusive sexual contact with a minor female. The PSR recommended that the offense level be increased because he sexually abused the victim. Defendant filed written objections to the PSR, objecting to the “fact” that he committed sexual abuse. At sentencing, the government offered no evidence to support the disputed fact and failed to correct the district court when it mistakenly said no objection had been made to the factual aspects of the report. The Eighth Circuit remanded, because when the facts in a PSR are challenged, the PSR itself is not evidence, and the government must prove those facts at sentencing. Defendant was not required to request en evidentiary hearing under local rules. Rather, it was the government that needed a hearing. The PSR’s recommendation was based on what the child victim told police and mental health professionals. It was likely these people made written reports summarizing their interviews. If the district court found these reports and live testimony reliable and credible, then this would be sufficient to establish the fact of sexual abuse. U.S. v. Burke, 80 F.3d 314 (8th Cir. 1996).

8th Circuit uses value of live birds as value of eggs stolen from the wild. (765) Defendant took bird eggs from the wild in Canada and imported them into the U.S. The PSR valued the eggs under § 2Q2.1(b)(3)(A) at $54,100, which equaled the value of the live birds that would be hatched from the eggs. Defendant argued that the eggs had little or no value themselves and have a high mortality rate in the wild so not every egg would necessarily hatch into a live bird. The district court adopted the PSR. On appeal, defendant argued that the court should have held an evidentiary hearing. The Eighth Circuit found no evidentiary hearing was necessary. The fair‑market retail value of the eggs was “difficult to ascertain,” and thus the court was permitted to make a reasonable estimate using any reliable information. The market value adopted by the PSR was not based on unreliable or undisputed facts, but from defendant’s own price list for live birds. Defendant’s legal argument that his was the most reasonable theory did not require an evidentiary hearing because the court was able to make a reasonable estimate based on undisputed facts. U.S. v. Oehlenschlager, 76 F.3d 227 (8th Cir. 1996).

8th Circuit says failure to make findings on controverted matter was harmless error. (765) Defendant established four companies that collected health insurance premiums but failed to provide the insurance. The district court calculated the loss at $2,745,400—premiums of $2 million and outstanding claims of $745,400. Defendant argued that the district court failed to make findings on “controverted matters” required by Fed. R. Crim. P. 32(c)(1). The Eighth Circuit held that the court’s failure to make a finding on defendant’s objection was harmless error, because it would not have changed the offense level. Defendant’s only objection was that the calculation did not account for legitimate expenses incurred by the companies. These amounts totaled $132,000, which, when subtracted from $2,745,400, still left more than $2.5 million as the amount of loss. Defendant’s claim that he “never received anything” from two of the companies did not raise a factual question, as the loss did not depend on the proceeds he personally received. U.S. v. Allen, 75 F.3d 439 (8th Cir. 1996).

8th Circuit upholds lack of evidentiary hearing where defendant waived objections to PSR. (765) Defendant argued that the district court should have held an evidentiary hearing based on his objections to the presentence report. The Eighth Circuit held that an evidentiary hearing was not required in light of defendant’s failure to pursue his objections. The district court noted in its statement of reasons that defendant did not pursue his PSR objections in light of the government’s motion for a downward departure. The district court gave defendant’s lawyer at least two chances to raise any issues he had in addition to the extent of the downward departure. Defendant completely failed to pursue his objection, much less request an evidentiary hearing as required by local rule. U.S. v. Goodwin, 72 F.3d 88 (8th Cir. 1995).

8th Circuit finds contested PSR insufficient to support leadership enhancement. (765) The district court found that defendant was a leader of a group of juveniles that attacked and killed another juvenile. The Eighth Circuit held that the government failed to provide sufficient evidence to support the § 3B1.1(a) enhancement. The sentencing judge said he relied on the presentence report, but defendant objected to that portion of the report. A court may only consider disputed matters if it receives evidence and makes a finding. No supporting evidence was introduced at sentencing. Evidence introduced at trial could not support the enhancement since the sentencing judge did not preside over the trial and did not have the trial transcript. Transcripts from related evidentiary proceedings involving the other juveniles could not be considered because they were not part of the record on appeal. In addition, the application of § 3B1.1(a) was questionable since the sentencing judge characterized the offense as involving “a small mob rather than organized activity.” U.S. v. Willard Makes Room for Them, 49 F.3d 410 (8th Cir. 1995).

8th Circuit says court should have held evidentiary hearing on defendant’s objections. (765) Without holding an evidentiary hearing, the district court adopted the presentence report’s facts and the probation officer’s recommendations. The 8th Circuit held that the court should have held an evidentiary hearing to address defendant’s objections to the report. Defendant specifically requested an evidentiary hearing. This placed in dispute the facts and inferences to be drawn from the facts. Once a defendant objects to a presentence report, the court must either make a finding as to whether the disputed fact exists or state that it will not take the disputed fact into account. A presentence report is not evidence and is not a legally sufficient basis for making findings on contested facts. The district court improperly accepted the facts and conclusions in the presentence report without holding an evidentiary hearing. U.S. v. Greene, 41 F.3d 383 (8th Cir. 1994).

8th Circuit says no findings required absent allegation of factual inaccuracy in amended PSR. (765) Defendant argued that the district court failed to make specific findings on disputed matters contained in his presentence report. The 8th Circuit held that the district court complied with Fed. R. Crim. P. 32(c)(3)(D). Defendant made a number of objections to the PSR prior to his original sentencing. The district court sustained several of those objections and ordered the report to be amended accordingly. The rest of his objections were overruled or found to be irrelevant. Defendant did not allege any factual inaccuracies in the amended PSR. Absent specific allegations of factual mistake, the court was not obligated to make findings under Rule 32. U.S. v. Saffeels, 39 F.3d 833 (8th Cir. 1994).

8th Circuit says factual findings are unnecessary where neither party objects to PSR. (765) Defendants argued that the district court failed to make factual findings regarding relevant conduct. The 8th Circuit held that factual findings were unnecessary, since neither defendant objected to any portion of the PSRs concerning relevant conduct. Rule 32(c)(3)(D) requires the district court to make specific factual findings only if one of the parties objects to a material portion of the PSR. U.S. v. Quintanilla, 25 F.3d 694 (8th Cir. 1994).

8th Circuit holds that court’s finding did not satisfy Rule 32(c)(3)(D). (765) The district judge responded to defendant’s objections to the PSR by stating “I’m going to deny the objections and for the record, I find that the total offense level here is 40.” The court made no other findings or ruling with respect to defendant’s objections. The 8th Circuit held that the court’s finding did not satisfy Rule 32(c)(3)(D). The finding did not articulate the legal basis for the district court’s conclusion. The appellate court was unable to determine whether the information relied upon had sufficient indicia of reliability. U.S. v. Fetlow, 21 F.3d 243 (8th Cir. 1994).

8th Circuit refuses to require resolution of disputes that might affect parole guidelines. (765) In this pre-guidelines case, defendant argued that the court violated Rule 32(c)(3)(D) by failing to make findings about drug quantity and his role in the offense, and to attach the findings to the PSR. The 8th Circuit held that the court complied with Rule 32 by deciding no findings were necessary because these matters would not be considered at sentencing. Moreover, no findings were required even though the contested information affected defendant’s offense severity rating on the parole guideline worksheet. Senior Judge Heaney dissented, arguing that the case should have been remanded with instructions either to determine the accuracy of the dispute material in the PSR or have it stricken. Bayless v. U.S., 14 F.3d 410 (8th Cir. 1994).

8th Circuit says refusal to strike reference in PSR to murder investigation did not violate Rule 32. (765) Defendant’s PSR noted that he was the main suspect in the murder of his co-conspirator, but he was never arrested nor formally charged. The 8th Circuit held that the district court’s refusal to strike this reference did not violate Rule 32. The PSR specifically indicated that defendant was never arrested or charged in the homicide. The information, therefore, was fairly presented and did not unfairly prejudice defendant. Judge Heaney dissented. U.S. v. Beatty, 9 F.3d 686 (8th Cir. 1993).

8th Circuit holds that failure to comply with Rule 32(c)(3)(D) was harmless error. (765) The district court specifically addressed and rejected each of defendant’s objections to the PSR without taking any further evidence. Instead, it relied on additional facts in the second addendum to the PSR, which the probation officer had prepared after defendant made his objections. The 8th Circuit concluded that this procedure violated Fed. R. Crim. P. 32(c)(3)(D), but that the error was harmless. There were sufficient uncontroverted facts in the remaining, unchallenged portions of the PSR and in the plea agreement to support a four-level enhancement for role in the offense. Judge Heaney dissented. U.S. v. Beatty, 9 F.3d 686 (8th Cir. 1993).

8th Circuit says court was not required to strike disputed portions of PSR that it did not consider in sentencing. (765) Defendant objected to portions of his PSR relating to allegations of sexual abuse. The district court made no findings in regard to these allegations, but complied with Fed. R. Crim. P. 32(c)(3)(D) by stating that it would not consider the disputed information at sentencing. The 8th Circuit rejected defendant’s claim that the court was required to strike any portion of the PSR that it did not consider in sentencing defendant. It also rejected his claim that the district considered the information by ordering special conditions of his supervised release. U.S. v. McLemore, 5 F.3d 331 (8th Cir. 1993).

8th Circuit holds that presentence report is not evidence. (765) The 8th Circuit held that the district court incorrectly placed on defendant the burden of producing evidence to contest the presentence report’s factual accuracy. In U.S. v. Fortier, 911 F.2d 100 (8th Cir. 1990), the court held that a court may rely solely on a presentence report only if the facts are not disputed. Fortier was overruled only so far as it concerned the Confrontation Clause. A presentence report is not evidence and is not a legally sufficient basis for making findings on contested issues of material fact. Defendant properly preserved his objection. He made a timely objection to the factual accuracy of the presentence report under the proper procedure. In addition, at his sentencing hearing, his lawyer took the position that the government had the burden of proof, and that it had to come forth with evidence other than the just the presentence report. U.S. v. Hammer, 3 F.3d 266 (8th Cir. 1993).

8th Circuit finds court made sufficient findings supporting drug quantity determination. (765) The 8th Circuit found that the district court made adequate findings to support its drug quantity determination. The court’s comments at sentencing, and its specific overruling of defendant’s quantity objections to the PSR, made it clear that the court credited the informant’s quantity testimony for sentencing purposes. This was an issue of the informant’s credibility, and findings on questions of witness credibility and weight of the evidence are entitled to particularly great deference. U.S. v. Edwards, 994 F.2d 417 (8th Cir. 1993).

8th Circuit remands for explanation of defendant’s responsibility for additional marijuana. (765) Defendant was arrested after leaving a site where a large quantity of marijuana was drying. He was in possession of two bundles of marijuana. The marijuana at the drying site belonged to his brother. Defendant claimed he was not responsible for the entire quantity of marijuana at the drying site, had nothing to do with its harvesting or processing, and was merely stealing some from his brother for some extra money. The government advanced two theories for basing defendant’s sentence on all the marijuana: (a) defendant had access to it and thus had constructive joint possession, and (b) defendant had joined his brother’s ongoing marijuana distribution activity. The district court held defendant accountable for the full quantity, but did not explain which of the government’s alternative theories it found persuasive. The 8th Circuit remanded for the court to make findings as to why it found defendant responsible for the entire amount of marijuana at the drying site. U.S. v. Coleman, 990 F.2d 419 (8th Cir. 1993).

8th Circuit finds 1982 marijuana flight was not relevant conduct for cocaine conspiracy. (765) Defendant was convicted of conspiring to distribute cocaine. He admitted at trial that in 1982 he had received a pound of cocaine as security for the payment due to him for flying a plane load of marijuana into the country, and that when the payment was not forthcoming he sold the cocaine. This was his first involvement in selling cocaine. The 8th Circuit affirmed that this incident was not relevant conduct for the instant offense. It involved a different drug (marijuana rather than cocaine), different conduct (flying drugs into the country as a hired pilot, rather than actively distributing them), and different people. U.S. v. Lewis, 987 F.2d 1349 (8th Cir. 1993).

8th Circuit finds district court properly imposed obstruction enhancement. (765) The PSR recommended an obstruction of justice enhancement because defendant submitted forged documents to the court during trial, and then committed perjury while testifying about these documents. Defendant objected to these allegations, but the district court imposed the enhancement. The 8th Circuit affirmed that the district court properly resolved defendant’s objections and satisfied Fed. R. Crim. P. 32(c)(3)(D). During sentencing, both defendant and the government argued about what the evidence at trial demonstrated concerning the alleged forgery and perjury. After listening to the arguments, the sentencing judge agreed that the defendant used documents at trial to try to fool the jury and to obstruct justice. The court then overruled defendant’s objections and imposed the obstruction enhancement. U.S. v. Mills, 987 F.2d 1311 (8th Cir. 1993).

8th Circuit finds court resolved whether defendant’s associates were participants in crime. (765) The 8th Circuit upheld a four level leadership enhancement under section 3B1.1(a), affirming that the district court properly resolved defendant’s claim that two of his associates were not participants in his fraud scheme. After listening to the arguments and reviewing the trial evidence concerning these associates, the district court found that both participated in the fraudulent scheme and overruled defendant’s objection to the enhancement. Thus, the district court satisfied Fed. R. Crim. P. 32(c)(3)(D). U.S. v. Mills, 987 F.2d 1311 (8th Cir. 1993).

8th Circuit holds that defendant did not waive objections by failing to present them at sentencing. (765) The 8th Circuit rejected the government’s contention that defendant waived his objections to the PSR’s allegations by failing to raise them at sentencing. Defendant objected in writing to the increases in his offense level under sections 2F1.1(b)(2) and 2F1.1(b)(3)(A). The government had the burden of proving these increases, and if it believed the increases were justified based on relevant conduct, it had the burden of proving that conduct. Because the government conceded before sentencing that it could prove no losses beyond those resulting from the offense of conviction, it was reasonable for defendant’s attorney to assume the government would not attempt to prove the PSR’s allegations of criminal conduct other than the conduct involved in the offense of conviction. U.S. v. Starr, 986 F.2d 281 (8th Cir. 1993).

8th Circuit affirms adoption of PSR’s determination of loss without specific finding of fact. (765) The 8th Circuit affirmed the district court’s decision to accept the PSR’s calculation of the loss caused by defendant’s embezzlement without making specific findings of fact. Defendant entered into a plea agreement that stated the amount of loss was between $800,000 and $2.5 million, leaving the final determination to the district court. Defendant urged the court to attach a copy of the auditor’s report to the plea agreement in order to provide the district court with guidance. The report, like the PSR, indicated that defendant had embezzled $1.5 million. But in both his written objections to the PSR and at the sentencing hearing, defendant failed to object to the PSR’s determination of the amount of loss. The appellate court also affirmed it was proper to include a lost interest calculation in the total amount of loss. An accurate determination of loss must contain a calculation for lost interest. U.S. v. Bartsh, 985 F.2d 930 (8th Cir. 1993).

8th Circuit, en banc, finds no due process violation where defendant cross examined probation officer about presentence report. (765) Shortly before the sentencing hearing, defendant presented the judge with 17 pages of objections to the presentence report. The judge then announced that he would assume that the factual statements in the presentence report were true, and that it was defendant’s burden to prove that they were not. The court put the probation officer under oath and conducted an abbreviated interrogation as to the truth of the statements contained in the report. Defense counsel was then permitted to challenge the evidentiary basis for the officer’s statements. The 8th Circuit, en banc, found that this procedure did not violate due process. It was error under Fed. R. Crim. P. 32(c)(3)(D) for the judge to announce that he would assume the report was correct and place the burden on defendant to prove it was not. But there was no functional difference between the procedure that was followed and the result that would have been reached had the government been required to question the officer in the first instance. U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992) (en banc).

8th Circuit upholds reliance on ringleader’s trial testimony as to drug quantity. (765) The 8th Circuit rejected defendant’s claim that the district court improperly relied upon his co-conspirator’ trial testimony as to the quantity of drugs involved in their drug conspiracy. The co-conspirator testified under oath and was vigorously cross-examined, so there was no hearsay or confrontation clause issue. The co-conspirator as ringleader was in the best position to quantify the conspiracy’s activities. Witness credibility is an issue for the sentencing judge that is virtually unreviewable on appeal. However, the case was remanded because the court did not explain how it reached its quantity determination. On remand, the district court was to specifically explain whether it found the co-conspirator’s testimony credible (a decision which would be virtually unreviewable), or whether because there was no other evidence, it felt bound to accept that evidence (which would be an error of law). Like any other fact finder, the sentencing judge is free to believe all, some, or none of a witness’s testimony. U.S. v. Candie, 974 F.2d 61 (8th Cir. 1992).

8th Circuit reverses obstruction enhancement for failure to resolve disputed facts. (765) The sentence was enhanced for obstruction of justice based on the presentence report’s recommendations. The 8th Circuit reversed. Defendant specifically objected to the allegations in the presentence report. The district court — without requiring the government to produce evidence, without conducting an evidentiary hearing, and without making a specific finding — simply adopted the presentence report. The presentence report was not evidence. If the district court relied upon threats allegedly made to government witnesses, the court should have required the government to produce evidence of those threats. If the enhancement was based on the belief that defendant committed perjury, the district court should have made a more specific finding to that effect. U.S. v. Holt, 969 F.2d 685 (8th Cir. 1992).

8th Circuit rules it was improper to rely on presentence report after objections. (765) Defendant’s presentence report named several persons over whom defendant exercised a leadership role. Defense counsel objected, and the district court then referred to various parts of the presentence report and listed five persons over whom the report found defendant had exercised a leadership role. The 8th Circuit found that the district court violated Fed. R. Crim. P. 32(c)(3)(D) by relying on the presentence report without resolving defendant’s objections. A presentence report is not evidence and when parties object to it, the court must make findings with respect to the controverted issues. U.S. v. Moore, 968 F.2d 216 (2nd Cir. 1992).

8th Circuit affirms compliance with Rule 32 where defendant failed to identify factual disputes unresolved by the court. (765) The 8th Circuit rejected defendant’s claim that the district court failed to make findings on asserted factual inaccuracies as required by Fed. R. Crim. P. 32(c)(3)(D). Defendant did not identify the factual inaccuracies unresolved by the district court. In addition, during the sentencing hearing, the district court made findings on defendant’s objections to the presentence report. U.S. v. Morton, 957 F.2d 577 (8th Cir. 1992).

8th Circuit affirms that district court did not rely on disputed information. (765) Defendant contended that the district court violated Fed. R. Crim. P. 32 by failing to resolve a factual dispute contained in the presentence report or make clear that it would not take the disputed matter into consideration at sentencing. The 8th Circuit rejected this contention, ruling that the district court complied with Rule 32 by making clear that defendant’s sentence would not be based on the disputed portion of the presentence report. After defendant agreed at her sentencing hearing that the factual dispute would not affect the sentencing determination in any way, the court stated that defendant’s objection to statements contained in the presentence report could be disregarded. U.S. v. Miller, 951 F.2d 164 (8th Cir. 1991).

8th Circuit vacates sentence because district court failed to resolve issue of disputed fact. (765) Defendant was arrested after a government agent delivered 3,000 pounds of marijuana to a place where defendant had arranged for prospective purchasers of the marijuana to meet. Although the presentence report recommended that defendant be sentenced on the basis of the full 3,000 pounds, defendant argued that he should be sentenced on the basis of 1,000 pounds, because there was no reliable evidence that he agreed to purchase the 3,000 pounds or that he was capable of arranging for purchasers for that amount. The district court indicated that the jury had made its determination, and that “it was not for this court to make that decision.” Defendant was then sentenced on the basis of the full 3,000 pounds. The 8th Circuit vacated the sentence because the court failed to resolve an issue of disputed fact. The indictment did not specify drug quantity, nor did the jury find defendant guilty of conspiracy to distribute any particular quantity of marijuana. U.S. v. Brown, 946 F.2d 58 (8th Cir. 1991).

8th Circuit upholds district court’s failure to make explicit finding as to defendant’s acceptance of responsibility. (765) Defendant’s presentence report recommended no downward adjustment for acceptance of responsibility for defendant’s drug offense nor for his failure to appear offense. Defendant objected to the recommendation for the drug offense, but did not specifically object to the recommendation concerning the failure to appear offense. The district court only made an explicit finding as to the drug offense. The 8th Circuit rejected defendant’s argument that it was improper for the district court to fail to make an explicit finding for the failure to appear offense. Since defendant did not specifically object to the recommendation in the presentence report that he receive no downward adjustment for acceptance of responsibility on the failure to appear offense, the district court was not required to make a specific finding of fact on that issue. U.S. v. Toirac, 917 F.2d 11 (8th Cir. 1990).

8th Circuit upholds consideration of drugs in dismissed count where defendant did not specifically object to presentence report. (7650) The 8th Circuit held that the guidelines “clearly anticipate including quantities of drugs from uncharged or dismissed counts in the calculation of a defendant’s base offense level.” Defendant’s complaint that no evidence was introduced to the amount of drugs was rejected on the ground that he did not make a “sufficiently specific” objection to the portion of the presentence report in question. “In the absence of objection alerting the court to the need for a specific finding, the court may rely on the presentence report.” U.S. v. Streeter, 907 F.2d 781 (8th Cir. 1990), overruled on other grounds by U.S. v. Wise, 976 F.2d 393 (8th Cir. 1992).

8th Circuit holds due process is satisfied by opportunity to challenge information relied upon at sentencing. (765) Defendant argued that he was denied due process at sentencing because the judge relied upon unsubstantiated information in the presentence report in finding that he was the leader of an extensive criminal organization. This resulted in a 4 point increase in his offense level. The 8th Circuit rejected his challenge, holding that due process only requires that the defendant be afforded an opportunity to ensure that the information relied upon at sentencing is accurate. A judge is required to use only his informed discretion in sentencing. He may rely upon information contained in the presentence report. So long as the defendant has an opportunity to challenge that information, due process is satisfied. The defendant’s sentence was proper, because he was afforded such an opportunity, even though his arguments were ultimately rejected. U.S. v. Sciacca, 879 F.2d 415 (8th Cir. 1989).

9th Circuit finds no error in denying evidentiary hearing on knowledge of securities fraud rule. (765) Under 15 U.S.C. § 78ff(a), a court may not impose a prison sentence for certain securities law violations if the defendant proves that he had no knowledge of the rule or regulation giving rise to the defendant’s violation. Defendant was convicted of violating Rule 10b-5. At sentencing, he sought an evidentiary hearing to determine whether he knew of Rule 10b-5. The Ninth Circuit held that defendant could have presented evidence about his lack of knowledge of Rule 10b-5 at trial or in his brief seeking an evidentiary hearing and that his failure to do so foreclosed him from obtaining an evidentiary hearing on that issue. U.S. v. Laurienti, 731 F.3d 967 (9th Cir. 2013).

9th Circuit reverses for failure to resolve defendant’s objections to presentence report. (765) Defendant raised numerous objections to the guidelines recommendations in the presentence report and argued for a below-guidelines sentence. If accepted, defendant’s objections would have caused a 14-point decrease in defendant’s offense level. At sentencing, the district court did not expressly address most of these objections and sentenced defendant within the guidelines range identified by the PSR. The Ninth Circuit rejected the government’s argument that the district court implicitly rejected defendant’s contentions and held that under Federal Rule of Criminal Procedure 32(i)(3)(B), a court must expressly rule on any disputed portion of the PSR or state that a ruling is unnecessary. U.S. v. Doe, 705 F.3d 1134 (9th Cir. 2013).

9th Circuit says Rule 32 only requires court to resolve disputes that affect sentence. (765) Defendant pleaded guilty to identity theft offenses. The presentence report recommended against a reduction in offense level because defendant had a minor role in the offense. Defendant objected to this recommendation, arguing that another man coerced defendant into committing the offense and that defendant had received a small portion of the offense proceeds. The district court declined to grant defendant a minor role reduction, but did not address defendant’s claims that he was coerced and that he received a small portion of the proceeds. On appeal, defendant argued that the district court violated Federal Rule of Criminal Procedure 32(i)(3), which requires a district court to rule on any disputed portion of the PSR “or other controverted matter” or state that a ruling is unnecessary because the matter will not affect sentencing. The Ninth Circuit held that Rule 32(i)(3) did not require the district court to resolve defendant’s allegations of coercion before imposing sentence and that the Rule requires the district court only to rule on controverted matters that affect the sentence. U.S. v. Petri, 731 F.3d 833 (9th Cir. 2013).

9th Circuit rejects use of judicial notice for modified categorical approach. (765) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. On appeal, the government urged the court of appeals to take judicial notice of facts that, the government argued, established that defendant’s prior conviction constituted a “crime of violence” under the modified categorical approach. The Ninth Circuit observed that it rarely takes judicial notice of facts presented for the first time on appeal and only of facts not subject to reasonable dispute. Here, the court found that the documents on which the government relied were subject to reasonable dispute. U.S. v. Castillo-Marin, 684 F.3d 914 (9th Cir. 2012).

9th Circuit finds plain error in relying on PSR to find crime of violence. (765) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The presentence report stated that defendant had a prior conviction for attempted assault second degree in New York and explained that according to the charging document, defendant stabbed another man with a knife five times. Based on this information, the PSR concluded that the New York offense was a “crime of violence” within the meaning of § 2L1.2(b)(1)(A)(ii) and that defendant’s offense level should be increased by 16. At sentencing, the district court found that defendant had a prior conviction for a crime of violence and sentenced defendant within the Guidelines range yielded by the 16-level increase. The Ninth Circuit held that the district court had committed plain error by relying on the PSR’s factual description of defendant’s prior offense or its characterization of defendant’s prior offense as a crime of violence. U.S. v. Castillo-Marin, 684 F.3d 914 (9th Cir. 2012).

9th Circuit finds procedural flaws in restitution award. (765) At defendant’s sentencing for abusive sexual contact, the victim’s mother sought restitution for trips she had made to the victim’s boarding school after the conduct that led to defendant’s conviction. In support of the restitution request, the victim’s mother submitted a spreadsheet listing the trips and a statement from a mental health counselor saying that the trips were necessary to the victim’s emotional recovery. Defendant argued that the spreadsheet did not establish that all of the trips were necessary to a mental health treatment plan, and he asked for further documentation and a hearing. The district court denied defendant’s request and imposed a restitution order in the amount sought by the victim. The Ninth Circuit held that the spreadsheet was insufficient to support the restitution award. U.S. v. Tsosie, 639 F.3d 1213 (9th Cir. 2011).

9th Circuit reverses for failure to make specific drug quantity finding. (765) Defendant pleaded guilty to a conspiracy to manufacture and distribute ecstasy. At sentencing, the government presented evidence of the amount of ecstasy the conspiracy could produce; defendant disputed that evidence and argued for a lower quantity. The district court failed to make specific findings as to the amount of ecstasy involved in the offense and instead accepted the government’s proposed offense level. The Ninth Circuit held that the district court erred in failing to resolve the dispute between the parties and in failing to make specific findings as to the amount of ecstasy involved in defendant’s offense. U.S. v. Forrester, 616 F.3d 929 (9th Cir. 2010).

9th Circuit says district court failed to justify variance in tax prosecution. (765) Defendant pleaded guilty to filing false tax returns. Under the Guidelines, he faced a minimum sentence of 27 months, and the presentence report calculated that he owed $1.2 million in restitution to the IRS. At sentencing, defendant stated that he could pay $600,000 in restitution immediately and that he could pay the remainder in the next 12 months by borrowing money from his father’s companies. The district court imposed a combination of probation and supervised release. The court reasoned that prison sentences do not deter tax offenders, defendant had promised to pay half the restitution immediately and the remainder in a year, and defendant’s offenses had occurred seven years earlier. On the government’s appeal, the Ninth Circuit held that the district court had failed to adequately explain its sentence. The court noted that the district court record was ambiguous on whether defendant’s ability to pay restitution would be affected by his incarceration, the offenses were “old” only because of the time it took to discover them, under the Guidelines a district court must consider the deterrent effect of a sentence, defendant had not agreed to pay the interest and penalties owed to the IRS, and defendant’s payment of restitution was required by law and should not be a basis to reduce his sentence. U.S. v. Bragg, 582 F.3d 965 (9th Cir. 2009).

9th Circuit says ruling on prior conviction did not involve factual disputes. (765) Defendant, convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, had a prior conviction for assault with a deadly weapon, in violation of California law. At sentencing, the district court found that this conviction was for a “crime of violence” and therefore increased defendant’s offense level under § 2L1.2(b)(1). On appeal, defendant argued that the district court failed to resolve factual disputes underlying the determination that his prior offense was a crime of violence. The Ninth Circuit held that defendant challenged only the burden of proof at sentencing, and that his objections to his prior sentence were purely legal. For that reason, the court held, the district court did not fail to resolve any factual disputes at sentencing. U.S. v. Grajeda, 581 F.3d 1186 (9th Cir. 2009).

9th Circuit reverses where it was unclear whether count found firearm was brandished. (765) Defendant participated in a bank robbery in which his accomplice displayed a firearm, and he was convicted of using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). That offense carries a seven-year minimum sentence if the firearm was “brandished,” and a five-year minimum sentence if the firearm was merely “used.” At sentencing, the prosecutor asked whether the court had found that a firearm was brandished during the robbery, and the court replied, “Yes, a firearm was present.” The Ninth Circuit held that the district court’s statement was ambiguous and remanded for the court to make a clear finding as to whether the firearm was brandished. U.S. v. Carter, 560 F.3d 1107 (9th Cir. 2009).

9th Circuit rules court need not resolve disputed facts that do not affect term of imprisonment. (765) Defendant pleaded guilty to drug-trafficking offenses. His presentence report listed his citizenship status as “legal permanent resident.” At sentencing, defendant claimed that he was actually a citizen and asked the district court to order the PSR amended, even though defendant’s citizenship status did not affect the sentence that defendant would receive. Defendant argued that the citizenship status listed in his PSR would affect where he was incarcerated and his eligibility for rehabilitative programs and early release. The district court ordered the PSR amended to say that defendant was “either a legal permanent resident or a citizen,” but declined to resolve that issue. The Ninth Circuit held that Federal Rule of Criminal Procedure 32 does not require a district court to resolve disputed facts in the PSR that do not affect the term of imprisonment imposed. U.S. v. Saeteurn, 504 F.3d 1175 (9th Cir. 2007).

9th Circuit says adopting victims’ statements resolves dispute over their credibility. (765) Defendant pleaded guilty to offenses arising out of his travel to foreign countries to have sex with minors. The presentence report contained allegations from the child victims about the harm they had suffered from defendant’s conduct. Defendant objected to the report on the grounds that the victims were not identified and their statements were not credible. The district court stated that it overruled defendant’s objections, and it expressly adopted the victims’ statements in sentencing defendant. The Ninth Circuit held that the district court’s adoption of the victims’ statements shows that it resolved the credibility dispute and that it satisfied the requirement of Federal Rule of Criminal Procedure 32 that it resolve all controverted matters. U.S. v. Doe, 488 F.3d 1154 (9th Cir. 2007).

9th Circuit vacates obliterated-serial-number enhancement. (765) At defendant’s sentencing for possession of a firearm by a convicted felon, the district court enhanced defendant’s sentence by two levels because the firearm had an obliterated serial number. During sentencing, the court said to defendant, “You weren’t charged with any conduct, other than that of being a felon in possession of a firearm, and one of those firearms had an obliterated serial number . . . .” The government argued that this statement constituted a finding that one of the firearms had an obliterated serial number, but the Ninth Circuit disagreed and concluded that the court had not found that the firearm had an obliterated serial number. Judge Kozinski concurred, arguing that “government counsel was trying to pull a fast one” in arguing that the district court had made a factual finding that the firearm had an obliterated serial number. U.S. v. Clark, 452 F.3d 1082 (9th Cir. 2006).

9th Circuit says that reliance on guilty plea does not resolve dispute over drug quantity. (765) At sentencing, defendant, convicted of a drug trafficking offense under 21 U.S.C. § 841, objected to the presentence report’s estimation of the weight of the drugs involved in his offense on the ground that the PSR did not state whether it was reporting gross or net weight. The district court held that defendant’s guilty plea established the quantity of drugs involved in the offense. The Ninth Circuit held that the district court’s conclusion did not address defendant’s objection and thus that the court failed to resolve a factual dispute, as required by Federal Rule of Criminal Procedure 32. U.S. v. Thomas, 355 F.3d 1191 (9th Cir. 2004).

9th Circuit finds court must determine prior criminal activity before departing for aberrant behavior. (765) During defendant’s sentencing for importing cocaine, defendant disputed that he had admitted to a customs inspector that he had crossed the border numerous times with cocaine in the week before his arrest. Without resolving this dispute, the district court departed downward on the ground that defendant’s crime was an act of aberrant behavior. The government appealed, arguing that because an aberrant behavior departure ordinarily is not available unless the defendant’s crime was “a single criminal occurrence or single criminal transaction,” § 5K2.20, the district court was required to resolve the dispute before departing. The Ninth Circuit held that the district court’s failure to resolve the factual dispute violated Federal Rule of Criminal Procedure 32(c)(1), which requires a court to resolve all controverted factual disputes. U.S. v. Leyva-Franco, 311 F.3d 1194 (9th Cir. 2002).

9th Circuit does not require sua sponte evidentiary hearing on reliability of hearsay in PSR. (765) Defendant objected to the district court’s reliance on hearsay, but he did not request an evidentiary hearing. Relying on the information in the presentence report, the district court found that the defendant was an organizer or leader under § 3B1.1. The Ninth Circuit found no plain error in the district court’s failure to conduct an evidentiary hearing on its own motion. It found that no evidentiary hearing is required when the district court allows the defendant to rebut the recommendations and allegations of the presentence report either orally or through the submission of written affidavits. U.S. v. Berry, 258 F.3d 971 (9th Cir. 2001).

9th Circuit requires evidentiary hearing on request for diminished capacity departure. (765) At his sentencing for convictions arising out of threats made to the President and his family, the defendant requested a downward departure under § 5K2.13. In support of that request, he asserted that as a result of extraordinary abuse as a child, he suffered from diminished capacity. He submitted a psychological evaluation from a doctor stating that his emotional difficulties influenced his decision to commit the crime. The district court declined to hold an evidentiary hearing and refused to depart downward, relying on an earlier psychological evaluation that found that the defendant was “manipulative.” The Ninth Circuit vacated the sentence, finding that the district court erred in rejecting the psychological evaluation submitted by the defendant. The court ordered the district court to hold a hearing on remand so that the defendant could attempt to substantiate the expert’s conclusions. U.S. v. Walter, 256 F.3d 891 (9th Cir. 2001).

9th Circuit requires strict compliance with Rule 32 in resolving objections to PSR. (765) Defendant was convicted of smuggling illegal aliens for commercial gain. He filed several objections to the Presentence Report’s description of his role regarding the death of one of the aliens. At sentencing, the court made the PSR part of the record, but did not mention the objections. On appeal, the Ninth Circuit held that the court had violated the requirement in Rule 32(c)(1) to rule on any unresolved objections to the PSR or explicitly explain why no findings were necessary. The Ninth Circuit requires strict adherence to Rule 32’s requirement. See U.S. v. Houston, 217 F.3d 1204, 1207 (9th Cir. 2000). The court vacated the sentence and remanded for resentencing. U.S. v. Herrera-Rojas, 243 F.3d 1139 (9th Cir. 2001).

9th Circuit reverses for lack finding that defendant could foresee all marijuana found in trailer. (765) Although defendant pled guilty only to offenses involving 100 kilograms of marijuana, the district court held him responsible at sentencing for all 800 pounds of marijuana found in the trailer. The Ninth Circuit reversed, noting that the presentence report did not say why defendant was accountable for the full amount of marijuana in the trailer. While “the sentencing court may adopt factual findings of the presentence report,” a district court “may not adopt . . . conclusory statements unsupported by the facts or the Guidelines.” U.S. v. Becerra, 992 F.2d 960, 966 (9th Cir. 1993). The case was remanded to the district court to make appropriate findings as to what amount the defendant could “reasonably foresee.” U.S. v. Gamez-Orduno, 235 F.3d 453 (9th Cir. 2000).

9th Circuit reverses for failure to find that drug conspirator reasonably foresaw all the transactions. (765) The relevant conduct guideline, § 1B1.3 provides that in the case of a conspiracy, the base offense level is determined on the basis of “all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” Here, the presentence report found defendant accountable for four kilograms of methamphetamine based on $70,000 cash received by a co-defendant in over sixty transactions between November 1994 and early 1997. Only fourteen of the transaction involved defendant and twenty-four involved two other co-conspirators. The district court based the sentence on four kilograms, but made no reference to the presentence report and failed to find that defendant reasonably foresaw all the transactions. The Ninth Circuit found it unnecessary to consider whether defendant properly objected to the findings in the presentence report, “[b]ecause reversal is warranted under plain error review as well as de novo review.” U.S. v. Seesing, 234 F.3d 456 (9th Cir. 2000).

9th Circuit rules court failed to resolve factual disputes in finding aggravating role. (765) Defendant challenged a number of specific factual statements in the PSR relevant to the role enhancement. While some of her statements were “little more than conclusory denials of the district court’s ultimate finding,” others stated “specific facts” that conflicted with statements in the PSR. At the sentencing hearing, the district court said it believed defendant was the leader’s “lieutenant,” and then found that she was a “supervisor, manager.” The court neither resolved the disputed factual issues nor indicated they were irrelevant. On appeal, the Ninth Circuit reversed, relying on its recent opinion in U.S. v. Standard, 207 F.3d 1136 (9th Cir. 2000), where the court reversed because the district court failed to resolve controverted matters in accordance with Fed. R. Crim. P. 32. In this case, “[b]ecause the district court did not explicitly resolve those factual disputes, we have no way of knowing which disputed statements, if any, the district court relied on in making its findings.” U.S. v. Carter, 219 F.3d 863 (9th Cir. 2000).

9th Circuit finds estimate of tax loss was reasonable and not clearly erroneous. (765) Defendant argued that the district court erred in calculating the tax loss for his 1994 income based on the government’s evidence rather than his own sworn statement. The government’s estimate was calculated by subtracting the cost of books defendant sold in his book-selling business from the retail price of the books. The Ninth Circuit held that “the district court was not compelled to conclude that [defendant’s] estimate of his 1994 income was more accurate than the estimate provided by the government witness.” Under 18 U.S.C. § 3742(e), “[t]he court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court’s application of the guidelines to the facts.” Under Application Note 1 to section 2T1.1, “the amount of tax loss may be uncertain; the guidelines contemplate that the court will simply make a reasonable estimate based upon the available facts.” U.S. v. Andra, 218 F.3d 1106 (9th Cir. 2000).

9th Circuit reverses where it was unclear that court found defendant made threats. (765) The presentence report said defendant threatened to shoot the bank tellers. Defendant’s objection was unclear whether he was arguing that the threats were never made, or that the threats simply did not constitute a “express threat of death.” At the sentencing hearing itself, however, he unequivocally denied making the statements. In response, the prosecutor simply argued that the statements constituted an express threat of death. The district court said that it agreed with the prosecutor’s “analysis concerning the threats.” On appeal, the Ninth Circuit reversed, holding that the district court failed to comply with Rule 32(c)(1), Fed. R. Crim. P., because it was unclear whether the district court ever understood that there was a dispute about whether the statements were in fact made. The court emphasized that on remand the district court could rely on the teller’s statements as recounted in the PSR as long as that information bears “some minimal indicia of reliability.” Contrary to defendant’s argument, “he has no right to an evidentiary hearing regarding the dispute over attribution of the statements.” Under Rule 32(c)(1) the court is left to its “discretion” whether it “permit[s] the parties to introduce testimony or other evidence on the objections.” Fed. R. Crim. P. 32(c)(1). U.S. v. Houston, 217 F.3d 1204 (9th Cir. 2000).

9th Circuit reverses where judge drew adverse inference from defendant’s silence at sentencing. (765) In Mitchell v. U.S., 526 U.S. 314, 327-30 (1999), the Supreme Court held that a sentencing judge may not, in determining facts and circumstances of a crime, draw an adverse inference from a defendant’s silence. In this case, it appeared that the district court implicitly drew such an adverse inference. Specifically, the court questioned whether defendant was even entitled to an evidentiary hearing, given his silence. After independently reviewing the record, the Ninth Circuit found that the district court did draw an adverse inference from defendant’s silence. This error was a factor in its misapplication of the preponderance standard: the district court held that the government’s evidence preponderated because “there isn’t any on the other side.” This effectively shifted the burden of proof at sentencing and violated defendant’s Fifth Amendment right against self-incrimination. U.S. v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000).

9th Circuit says “preponderance” standard requires evidence to be convincing, not simply more in quantity. (765) After holding that a 9-level increase for an uncharged kidnapping required proof by “clear and convincing” evidence, the Ninth Circuit added that in any event, the district court applied the “preponderance” standard improperly. The district court found that the government’s evidence preponderated because “there isn’t any on the other side.” This was improper because the judge must focus on the convincing force of the evidence, not simply on the “quantum” of evidence. See U.S. v. Restrepo, 946 F.2d 654, 661 (9th Cir. 199) (en banc), quoting In re Winship, 397 U.S. 358, 367-68 (1970). In relying on the quantum of evidence, rather than its convincing force, the district court denied defendant due process. U.S. v. Mezas de Jesus, 217 F.3d 638 (9th Cir. 2000).

9th Circuit finds no violation of Rule 32 where there were no unresolved objections. (765) Defendant argued that because the probation department erred in calculating the base offense level, and the district court adopted the recommended base level without a specific finding regarding the error, the district court did not follow Fed. R. Crim. P. 32(c)(3)(D). That rule requires the court to rule on any unresolved objections to the presentence report. Here, however, there was no unresolved objection, nor any controverted matter, regarding the base offense level in the PSR. All parties initially erred in calculating the marijuana equivalency of the drugs. However, at sentencing all parties agreed on the amount of drugs for which defendant was accountable, and the resulting base offense level of 34. At sentencing, defendant merely asserted that the PSR recommendation of 34 differed from the plea agreement recommendation of level 32, not that there was error in the PSR’s recommended base offense level. U.S. v. Maldonado, 215 F.3d 1046 (9th Cir. 2000).

9th Circuit remands where judge failed to resolve dispute over tax loss. (765) Defendant, a personal injury lawyer, was convicted of subscribing to a false tax return based on deductions he took for $1.7 million he paid out for “referral fees.” Apparently much of this money was paid to persons from whom he solicited personal injury cases, which constituted illegal “capping” under California law. However, he argued at sentencing that some of the payments he deducted were for unsolicited referrals, which were not illegal in 1988 in California. The district judge failed to resolve the dispute, and used the entire $1.7 million deduction to calculate the tax loss. On appeal, the Ninth Circuit reversed, holding that under Fed. R. Crim. P. 32, the district court should have resolved the dispute and determined what part of the $1.7 million deductions were for unsolicited referrals and therefore proper. U.S. v. Standard, 207 F.3d 1136 (9th Cir. 2000).

9th Circuit upholds obstruction increase despite late findings and cutting off allocution. (765) At the sentencing hearing, defendant argued that the enhancement for obstruction of justice was unwarranted. The district judge eventually cut off his argument on this point. On appeal the Ninth Circuit found no violation of due process, noting that defendant’s right to allocution “permits him to speak so that he may influence whether the district court chooses the lower, middle or higher end of the guideline range, not so he can argue the legal merits of a particular guideline.” In addition, the district judge did not make the required findings to support the obstruction increase until he filed written findings five days after sentencing. However the Ninth Circuit noted that Fed. R. Crim. P. 32(c)(3)(D) does not specifically require that the findings be made at the sentencing hearing. U.S. v. Daas, 198 F.3d 1167 (9th Cir. 1999).

9th Circuit holds objections to PSR preserved right to appeal despite lack of argument at sentencing. (765) In his objections to the PSR, defendant objected to both the vulnerable victim and the obstruction of justice enhancements. At sentencing, the judge tentatively found these enhancements should be applied and asked defense counsel for comments. After consulting with defendant, counsel told the court that he only wished to be heard on the supervisor enhancement. The hearing then proceeded without further mention of the vulnerable victim or obstruction of justice enhancements. On appeal, the government argued that defendant waived his objections to these enhancements. However, the Ninth Circuit held that under U.S. v. Barnes, 993 F.2d 680, 685 (9th Cir. 1993), defendant’s objections to the presentence report preserved his right to appeal these issues. U.S. v. Luca, 183 F.3d 1018 (9th Cir. 1999).

9th Circuit relies on judge’s post-sentence statement of reasons filed before notice of appeal. (765) Defendant argued that the judge did not make adequate findings when he imposed sentence on August 15, 1996, because he did not file a memorandum elaborating his findings until September 3, 1996. In U.S. v. Fitzwater, 896 F.2d 1009 (6th Cir. 1990), the appeals court refused to consider a trial court’s written explanation for its departure which had been filed four weeks after the date of sentencing which was also the date that an appeal was taken. The Ninth Circuit distinguished Fitzwater, noting that the judgment in this case was not entered until September 3, 1996, the same day that the judge’s memorandum was filed. Although defendant had filed his notice of appeal on August 15, 1996, the judgment was not entered until September 3, 1996 so the district court still had jurisdiction on that date. The panel emphasized that “we do not wish to encourage the substitution of post-sentencing elaboration for contemporaneous recitation of the details supporting sentencing decisions,” because this “risks eliminating the opportunity for meaningful argument before the sentencing court itself.” However, the court said that risk was not realized here because the prosecutor had argued the issue and the court gave defense counsel an opportunity to respond. U.S. v. James (Masala), 139 F.3d 709 (9th Cir. 1998).

9th Circuit says Rule 32 does not create a general right to an evidentiary hearing at sentencing. (765) If the district court allows the defendant to “rebut the recommendations and allegations of the presentence report either orally or through the submission of written affidavits or briefs, Rule 32 does not require an evidentiary hearing. U.S. v. Sarno, 73 F.3d 1470, 1502 (9th Cir. 1995). In this case, the district court allowed defense counsel to object to the presentence report both in writing and at the sentencing hearing. Defendant was allowed to introduce the IRS audit summary, and the district court considered defendant’s objections based on that summary and the possible restitution to the victims. Accordingly, the Ninth Circuit found no abuse of discretion in the district court’s refusal to conduct an evidentiary hearing. U.S. v. Stein, 127 F.3d 777 (9th Cir. 1997).

9th Circuit says court need not articulate reasons for applying perjury cross-reference. (765) Defendant argued that the district court erred in failing to make factual findings in applying the cross-reference in § 2J1.3(c)(1). That section says that if the offense involved perjury in respect to a criminal offense, the court should apply § 2X3.1 (accessory after the fact) in respect to that criminal offense, if the resulting offense level is greater. Defendant argued that the court simply deferred to the probation officer’s recommendation without addressing defendant’s objections. The Ninth Circuit rejected the argument, noting that the court expressly found the cross-reference applicable, and “Rule 32(c)(1) does not require the court to articulate the reasoning for its finding.” “Although the court did not articulate the facts upon which it relied in ruling as it did, we are satisfied that the requisite finding was made.” U.S. v. Rude, 88 F.3d 1538 (9th Cir. 1996).

9th Circuit vacates sentence for failure to make findings on objections to PSR. (765) Rule 32, Fed. R. Crim. P., provides that when a defendant “allege[s] any factual inaccuracy in the presentence investigation report . . . the court shall, as to each matter controverted, either make (i) a finding as to the allegation or (ii) [state that] the matter controverted will not be taken into account in sentencing.” Failure to make the necessary findings requires that the sentence be vacated and the defendant resentenced. Here, the defendant filed written objections to four convictions listed in the PSR, which the government conceded were the convictions of another person whose identity the defendant had assumed. The court struck on of the convictions, but made no finding as to the other three. The case was remanded for resentencing. U.S. v. Del Muro, 87 F.3d 1078 (9th Cir. 1996).

9th Circuit remands for failure to discuss defendant’s requests for adjustments. (765) Without discussing defendant St. Clair’s requests for adjustments for acceptance of responsibility and role in the offense, the district court simply gave him the sentence recommended by the presentence report. The Ninth Circuit remanded with instructions to make specific findings as to whether St. Clair was entitled to those adjustments. The appellate court noted that prior cases require the district court to make clear on the record its resolution of all disputed matters. Defendant specifically objected to the presentence report and raised these issues in his sentencing argument. It was insufficient for the district court simply to rely on the presentence report. U.S. v. Ing, 70 F.3d 553 (9th Cir. 1995).

9th Circuit reverses where court failed to explain its sentence. (765) At sentencing the district court simply said “based on all the papers . . . the sentence will be twelve months.” The Ninth Circuit held that this was not enough to permit meaningful review. Relying on earlier cases, the court said the sentence must be vacated if the district court does not adopt the presentence report or attempt to tie its sentencing decision to the guidelines. U.S. v. Vallejo, 69 F.3d 992 (9th Cir. 1995).

9th Circuit finds court adequately stated reasons for rejecting objections to the presentence report. (765) During the sentencing hearing, the district court noted that the amount of underreported income” was in dispute. The court then stated that it was persuaded that the amount indicated by the government was the correct amount. In its written findings, the court said it considered both the evidence presented at trial and the accounting documentation offered at sentencing and found that the defendant wrongfully underreported a total of $73,360. On appeal, the Ninth Circuit found that these statements demonstrated that the district court considered defendant’s objections but resolved the disputed facts against him. This was sufficient to satisfy Rule 32(c) Fed. R. Crim. P. U.S. v. Karterman, 60 F.3d 576 (9th Cir. 1995).

9th Circuit says nonconstitutional violation of Rule 32 may not be raised for first time on habeas. (765) Defendant did not appeal his sentence, but several years later he filed a petition under 28 U.S.C. § 2255 claiming that the district court failed to resolve factual disputes at sentencing as required by Fed. R. Crim. P. 32(C)(3)(D). The 9th Circuit agreed with the government that allegations of such sentencing errors, when not directly appealed, are not generally reviewable by means of a § 2255 petition. The court did not rule out the possibility that certain errors might be remediable by way of a § 2255 petition because they were not discoverable in time for direct appeal. But in this case there was no reason why petitioner should not have known of, and been able to appeal, the alleged “errors” immediately. U.S. v. Schlesinger, 49 F.3d 483 (9th Cir. 1994).

9th Circuit reverses 8-level departure where agent was killed in disposing of illegal fireworks. (765) Defendant was arrested at his home for manufacturing illegal fireworks and the chemicals were transported to Fort Lewis. Thereafter, in the process of preparing to destroy the chemicals at a demolition site, an ATF agent was fatally injured when the chemicals spontaneously ignited and exploded. The district court departed upward by eight levels under § 5K2.1. In doing so however, the judge failed to consider expert testimony and factual proof offered by defendant that the ATF agent was negligent in disposing of the chemicals. The court accepted defendant’s evidence only as “an offer of proof.” On appeal, the 9th Circuit held that this violated Fed. R. Crim. P. 32(c)(3)(D). The sentence was vacated and the case was remanded to a different judge for resentencing. U.S. v. Williams, 41 F.3d 496 (9th Cir. 1994).

9th Circuit says court may not adopt conclusory statements in the PSR unsupported by facts. (765) It is well settled that while a district court may adopt the factual findings of the presentence report, it may not “adopt conclusory statements unsupported by facts or the guidelines.” U.S. v. Navarro, 979 F.2d 786, 789 (9th Cir. 1992). In the present case, the government failed to offer any justification for increasing its original recommendation of two levels because of the risk of public safety to three levels in the second recommendation. As the government conceded at oral argument, the probation office learned nothing new between the two reports. Thus the district court’s adoption of the conclusion in the presentence report without making its own factual findings was erroneous under Rule 32(c)(3)(D), Fed. R. Crim. P. U.S. v. Williams, 41 F.3d 496 (9th Cir. 1994).

9th Circuit upholds aggravating role where court adopted the government’s argument. (765) There was sufficient evidence in the record to show that defendant was a leader or organizer of the conspiracy and that he exercised control over other members of the conspiracy. Defendant failed to present evidence controverting these facts, or to object to the district court’s failure to make specific factual findings in support of its conclusion. Relying on its opinion in U.S. v. Peters, 962 F.2d 1410, 1415 (9th Cir. 1992), the 9th Circuit held that under these circumstances, specific findings of fact are not required. It was sufficient that the court adopted the government’s argument and that defendant had an opportunity to present evidence to the contrary. U.S. v. Leung, 35 F.3d 1402 (9th Cir. 1994).

9th Circuit upholds denial of evidentiary hearing regarding “missing” marijuana plants. (765) Defendant argued the district court erred in denying his motion for an evidentiary hearing concerning the discrepancy between the number of marijuana plants seen at defendant’s greenhouse and the government’s inability to account for some of those plants at sentencing five months later. The 9th Circuit found no error in denying a hearing because the district court had already properly harmonized the testimony of the experts and the police officer. An additional evidentiary hearing would have turned up no new evidence. The court noted that “if the additional plants were discovered somewhere at the DEA facility, they would only support a conclusion which the district court had already properly reached—that more than 100 plants had been seized. U.S. v. Robinson, 35 F.3d 442 (9th Cir. 1994).

9th Circuit says argument over role did not raise factual dispute, so findings not required. (765) If defendant alleges a factual inaccuracy in the presentence report, the court is required either to make a finding as to the accuracy of the challenged factual proposition or to indicate that it is not taking it into consideration. Here, however, defendant’s claims “were not objections to the accuracy of the presentence report, but rather were claims of the existence of evidence which was not presented at trial, which might have led to the conclusion the [defendant] played a minor role in the offense.” The district court considered these, but rejected them. Therefore, it was proper for the court simply to adopt the presentence report’s finding as to defendant’s role. U.S. v. Hanoum, 33 F.3d 1128 (9th Cir. 1994).

9th Circuit upholds credibility finding that “money was exchanged.” (765) Defendant was convicted of conspiracy and murder for hire. At sentencing the district court found that “money was exchanged to carry out the crime,” and added four levels pursuant to §2A2.1(b)(2). On appeal, defendant argued that this finding should not stand because it was based on his codefendant’s testimony which was disputed, and the payment of the money was only a “miniscule part of the conspiracy charged.” The 9th Circuit upheld the district court’s determination noting that “credibility determinations should not be disturbed on appeal.” U.S. v. Dota, 33 F.3d 1179 (9th Cir. 1994).

9th Circuit says adoption of probation report constituted sufficient findings. (765) Defendant argued that the district court violated Fed. R. Crim. P. 32(c)(3)(B) by failing to make findings after defendant personally challenged the inclusion of a driving under the influence charge and the weight of the cocaine used to calculate his offense level. The 9th Circuit found no merit in the argument, holding that “because the district court expressly adopted the probation officer’s resolution of those issues, the district court complied with Rule 32(c)(3)(B).” U.S. v. McClain, 30 F.3d 1172 (9th Cir. 1994).

9th Circuit upholds judge’s credibility findings. (765) The district court’s finding that defendant and his wife had been drinking was supported by the record and their own admissions. It was permissible for the district court to consider defendant’s prior convictions in evaluating his credibility. Thus, the court did not clearly err in finding that defendant intended to rob the sandwich shop. U.S. v. Rutledge, 28 F.3d 998 (9th Cir. 1994).

9th Circuit upholds sentence for conduct on which jury failed to reach a verdict. (765) Defendant argued that it was improper for the district court to adjust his sentence upward for conduct on which the jury failed to reach a verdict. He relied on U.S. v. Brady, 928 F.2d 844 (9th Cir. 1991), which held that a court may not base a sentence on facts that have been rejected by a jury’s not guilty verdict. The 9th Circuit found no error, noting that the jury here did not acquit defendant, “it merely failed to reach a verdict.” The government introduced persuasive evidence that defendant had participated in the conduct on which the jury failed to agree. Therefore the district court was free to find these facts and base its sentence upon them despite the jury’s failure to reach a verdict. U.S. v. Duran, 15 F.3d 131 (9th Cir. 1994).

9th Circuit says claim to mental impairment must be viewed with “lenity.” (765) The 9th Circuit said that in resolving disputed facts concerning mental impairment the court’s inquiry into the defendant’s mental condition and the circumstances of the offense must be undertaken “with a view to lenity, as section 5K2.13 implicitly recommends.” The defendant bears the burden of proving the appropriateness of a downward departure, but it is unnecessary for a defendant who requests a departure under section 5K2.13 to undergo a mental health examination of the type used in determining guilt or innocence. The district court must tailor its fact-finding process to “the nature of the dispute, its relevance to the sentencing determination, and applicable caselaw.” Judge Canby concurred in the result. U.S. v. Cantu, 12 F.3d 1506 (9th Cir. 1993).

9th Circuit upholds finding that offense was money laundering, not structuring. (765) Defendant was charged with conspiring to engage in both money laundering and structuring financial transactions. The jury entered a general verdict, so the court was required to determine whether he was convicted of money laundering or structuring, for purposes of applying the guidelines. In response to defendant’s argument at sentencing, the judge stated that he was “satisfied that this is a laundering transaction, not a money structuring.” The 9th Circuit held that the judge was correct, and this statement was a sufficiently clear factual finding to satisfy the requirements of Rule 32. U.S. v. Castaneda, 9 F.3d 761 (9th Cir. 1994).

9th Circuit finds failure to resolve factual disputes violated Rule 32. (765) Defendant argued the district court relied on false information in the presentence report to determine his sentence. Defendant disputed that he had been arrested for burglary and also asserted that many of 73 alleged tribal convictions actually involved his cousin who had a similar name. The district court made no finding with regard to the validity of the first conviction. With regard to the tribal convictions, the court only concluded that “some of these are his, I take it?” These findings did not comport with the requirements of Rule 32. The rule requires a sentencing court either to make a finding as to the accuracy of the challenged factual proposition or to indicate it is not taking it into consideration. U.S. v. Garfield, 987 F.2d 1424 (9th Cir. 1993).

9th Circuit reverses where court relied on unsupported conclusions in PSR. (765) There was uncontroverted evidence that defendant was involved in only the first of five transactions in a multi-defendant drug conspiracy. The presentence report concluded that the quantities involved in all five of the transactions should be included in calculating the offense level. While the district court may adopt findings in the presentence report, it may not adopt conclusory statements unsupported by the facts or guidelines. The presentence report offered no rationale for its conclusion that the sentence should be based on the quantities in the entire conspiracy. Because the court’s statements indicated it did not make the factual determinations required by the guidelines, the sentence was vacated and the case was remanded with directions to make express findings regarding defendant’s culpability for each transaction. U.S. v. Navarro, 979 F.2d 786 (9th Cir. 1992).

9th Circuit remands to determine whether to hold an evidentiary hearing. (765) Since the district court did not make specific findings with respect to the defendant’s allegations of factual inaccuracy in the presentence report, the case was remanded to the district court. However, the 9th Circuit rejected the defendant’s argument that the district court must afford her an evidentiary hearing on remand. Rule 32(c)(3)(A) “expressly vests the district court with discretion to hold an evidentiary hearing.” Absent specific findings, the appellate court could not determine whether the district court abused its discretion in denying the motion for an evidentiary hearing. U.S. v. Harrison-Philpot, 978 F.2d 1520 (9th Cir. 1992).

9th Circuit reverses drug amounts in relevant conduct for lack of finding of reasonable foreseeability. (765) Under the “relevant conduct” section, 1B1.3(a)(2), a defendant is responsible for amounts of drugs that he could have “reasonably foreseen” in furtherance of a joint agreement. Here, there was nothing in the presentence report to indicate that defendant aided and abetted any drug sales before June 28, 1990 or was a member of a conspiracy prior to that date. The district court apparently thought that relevant conduct should include the amounts in all of the counts of the indictment. Since the court made no factual findings as to defendant’s involvement in the distribution of cocaine prior to June 28, 1990, the sentence was reversed and the case was remanded for express findings. U.S. v. Chavez-Gutierrez, 961 F.2d 1476 (9th Cir. 1992).

9th Circuit remands for statement of reasons to be attached to presentence report. (765) By an addendum attached to the final presentence report, the probation service responded to each of defendant’s challenges to the report’s factual assertions. The district court adopted these responses in a Statement of Reasons for Imposing Sentence filed March 8, 1991. However, the record did not indicate that the Statement of Reasons had been attached to the presentence report. The case was remanded so that the district court could append a copy of the Statement of Reasons to the presentence reports or by any other means make it clear that the court had adopted the probation service’s responses. U.S. v. Schubert, 957 F.2d. 694 (9th Cir. 1992).

9th Circuit finds defendant was given adequate opportunity to present information at sentencing. (765) The defendant filed a 27-page sentencing memorandum supported by 35 pages of attachments, a 32-page set of formal objections to the presentence report supported by 16 pages of attachments, and numerous letters. At sentencing, the court asked defense counsel if there were other materials that were supposed to be before the court, and counsel replied no. Accordingly, the 9th Circuit held that defendant was given an adequate opportunity to present information regarding disputed factors. U.S. v. Helmy, 951 F.2d 988 (9th Cir. 1991).

9th Circuit holds that district court sufficiently indicated it would not rely on alleged inaccuracies in presentence report. (765) Rule 32(c)(3)(D) provides that when the defendant alleges factual inaccuracies in the presentence report, the judge must either make a “finding as to the allegation,” or state that “no such finding is necessary because the matter controverted will not be taken into account in sentencing.” The finding must be in writing and attached to the presentence report that is sent to the Bureau of Prisons. Here the district judge stated that since the alleged inaccuracies did not “affect the sentencing in this matter, I believe I may proceed with it.” The 9th Circuit concluded that this statement “sufficiently indicates that the district judge’s sentence would not be based on the alleged inaccuracies.” The judge’s failure to attach his ruling to the presentence report was only a “technical violation of the rule” and could be remedied by ordering the district court to send a new copy of the presentence report to the Bureau of Prisons with the statement attached. U.S. v. Houtchens, 926 F.2d 824 (9th Cir. 1991).

9th Circuit remands to permit district court to make findings on controverted facts in the presentence report. (765) Defendant contested various statements in the presentence report, including statements that the conspiracy charge was his second offense, that the government dropped additional charges against him as part of a plea bargain, that he had been paid by his codefendants not to cooperate with the government, and that he had been convicted of resisting arrest in 1974. The district court failed to address these controverted issues, and accordingly the 9th Circuit remanded the case for resentencing in compliance with Rule 32(c)(3)(D). U.S. v. Clay, 925 F.2d 299 (9th Cir. 1991), overruled on other grounds by Gozlon-Peretz v. U.S., 498 U.S. 395 (1991).

9th Circuit finds no abuse of discretion in refusing oral argument and testimony on the issue of quantity of drugs. (765) Defendant argued that the district court erroneously refused oral argument and testimony on the issue of quantity of drugs. However, the court delayed sentencing to allow a written submission on the quantity issue. Defendant filed a written argument and a supporting declaration and the government filed an opposition and a supporting declaration. The district court denied defendant’s request to testify but stated that his affidavit could be filed. The 9th Circuit held that these procedure did not violate guidelines § 6A1.3(b). There was no abuse of discretion since defense counsel was given the opportunity to make a written submission. U.S. v. Upshaw, 918 F.2d 789 (9th Cir. 1990).

9th Circuit grants rehearing to order remand so that court’s findings can be appended to the presentence report. (765) In response to the defendant’s challenge to the presentence report, the district judge declared that defendant had “obtained in excess of $250,000 illegally from various insurance companies.” However, it failed to append these findings to the presentence report, as required by Rule 32. Accordingly, Judges Tang and Skopil granted rehearing in this case and amended their prior opinion to order a limited remand to the district court with instructions that the court append a transcript of its proceedings to the presentence investigation report. Third Circuit Judge Aldisert, sitting by designation, dissented, stating that requiring a copy of the transcript to be appended to the presentence report “is a pendanticism required neither by procedural rule nor case law.” U.S. v. Roberson, 896 F.2d 388 (9th Cir. 1990), modified, 917 F.2d 1158 (9th Cir. 1990).

9th Circuit upholds local rule requiring parties to object to presentence report before sentencing. (765) The Idaho local rule requires the parties to lodge their objections to the presentence report prior to the sentencing hearing. Pursuant to the local rule, the district judge refused to entertain the government’s objection, which was raised for the first time at sentencing. The 9th Circuit held that the local rule was consistent with Rule 32(a)(1) Fed.R.Crim.P. because that rule “does not unconditionally require the district court to entertain objections to the accuracy of the presentence report not previously raised by the parties.” Since the district court properly refused to hear the government’s objection, the court treated the objection as if it were not raised in the district court, and found no “plain error.” U.S. v. Lopez-Cavasos, 915 F.2d 474 (9th Cir. 1990).

9th Circuit holds that no sentencing hearing is necessary where matter is not “reasonably in dispute.” (765) The 9th Circuit noted in a footnote that “the opportunity to present information only arises under guideline § 6A1.3 when a factor is “reasonably in dispute.” Here, “the presentence report’s detailed description of the events surrounding [defendant’s] arrest so outweighed [his] bare contention that the event never transpired that whether the assault took place was never ‘reasonably’ in dispute.” U.S. v. Montenegro-Rojo, 908 F.2d 425 (9th Cir. 1990).

9th Circuit holds that Rule 32 does not require disputed information to be stricken from presentence report. (765) In response to defendant’s objection, the district court included in its findings of fact, a determination that the disputed information would not be taken into account in sentencing. The defendant argued that the court erred in refusing to strike the disputed information from the presentence report. The 9th Circuit rejected the argument, noting that Fed. R. Crim. P. 32(c) does not require that information be stricken from the presentence report. It merely requires that a written record of the court’s findings be appended to and accompany the presentence report made available to the Bureau of Prisons. U.S. v. Robertson, 901 F.2d 733 (9th Cir. 1990).

9th Circuit rules that some objections to presentence report require findings while others do not. (765) The 9th Circuit held that the trial judge should have ruled on defendant’s objection to the factual accuracy of the statement identifying his codefendants as members of the “Bloods” gang. The court noted that Rule 32(c)(3)(D) applies where a defendant “alleges any factual inaccuracy in a presentence report” not just inaccuracies concerning the defendant. However the court rejected the defendant’s arguments that the presentence report should not have contained a reference to a 38 caliber pistol. The court noted that this objection went to the inclusion of the statements concerning the pistol in the report, not to their factual accuracy. The court held that the district court did not err in failing to delete the challenged portions of the presentence report. “Neither due process nor Rule 32 require a district court judge to be an editor as well as an arbiter of justice.” U.S. v. Turner, 898 F.2d 705 (9th Cir. 1990).

9th Circuit, en banc, holds that failure to resolve factual disputes at sentencing requires remand. (765) The en banc 9th Circuit ruled that strict compliance with Rule 32 is required. When a defendant challenges the factual accuracy of any matters contained in the presentence report, the district court must, at the time of sentencing, make the findings for determinations required by Rule 32. The judge cannot simply file a subsequent order stating that the disputed allegations were not relied on in imposing sentence. Noting that there is a split in the circuits on this question, the court adopted this “bright-line rule.” U.S. v. Fernandez-Angulo, 897 F.2d 1514 (9th Cir. 1990) (en banc).

9th Circuit, en banc, holds that failure to append findings to presentence report is a ministerial error that does not require resentencing. (765) The defendant argued that the district court failed to append to the presentence report the appropriate findings or determinations resolving the controverted matters at sentencing. The en banc 9th Circuit held that “such a technical violation of the rule is a ministerial error which does not require resentencing.” The technical error must however, be corrected by “ordering the district court to append to the presentence report the required findings or determinations.” U.S. v. Fernandez-Angulo, 897 F.2d 1514 (9th Cir. 1990) (en banc).

9th Circuit finds district court’s statements in response to challenges to presentence report inadequate. (765) Rule 32(C)(3)(D) requires that if the defendant or his counsel alleges any factual inaccuracy in the presentence report or any part of it “the court shall as to each matter controverted make (i) a finding as to the allegation or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.” Here the sentencing judge’s statesents that the objections were “noted” and his “all right” acknowledgement that an objection had been made did not indicate whether he took the disputed matter into account in imposing sentence. Accordingly, The 9th Circuit held that these statements by the district court did not satisfy the requirements of Rule 32(C)(3)(D). Remand for resentencing was required. U.S. v. Rico, 895 F.2d 602 (9th Cir. 1990).

10th Circuit reverses where court improperly adopted PSR’s drug quantity finding. (765) Defendant was convicted of conspiring to manufacture and distribute 50 grams or more of methamphetamine. On appeal, defendant argued that the court improperly adopted the PSR’s finding that she was responsible for more than 1.5 kilograms of meth, and the Tenth Circuit agreed. When defendant challenged the drug-quantity calculation in the PSR, the district court did not require the government to put on evidence supporting the calculation, stating that the PSR was based on trial testimony. However, this statement was inaccurate, and the government conceded this at oral argument. The error was not harmless because the trial evidence would not compel a finding of at least 1.5 kilograms of methamphetamine. Some of the evidence indicated defendant’s involvement with meth, but was unhelpful as to quantity. Other trial evidence did speak of quantities, but the quantities were not precise, and extrapolation would be required to reach 1.5 kilograms of meth. U.S. v. Harrison, 743 F.3d 760 (10th Cir. 2014).

10th Circuit finds court did not rely on disputed statements in PSR. (765) Defendant’s PSR documented all of his prior convictions, and also included a section entitled “Other Criminal Conduct,” which listed 22 of defendant’s prior arrests and described the circumstances underlying those arrests. On appeal, defendant argued that the district court erred by assuming the truth of all disputed statements regarding his prior arrests not resulting in conviction, and then relied on those statements to impose a higher sentence. The Tenth Circuit found no plain error. The district court arguably determined that a ruling was unnecessary since it stated its intention to disregard the “other criminal conduct.” The court gave persuasive reasons for its sentence, none of which depended on the specific facts underlying defendant’s other criminal conduct. First, the court discussed a dismissed § 924(c) charge. Second, the court observed that defendant had spent 87% of his last 29 years either facing charges or serving a sentence of some kind. Third, the court considered that defendant had committed “strikingly similar” conduct before when he had pointed a loaded handgun at bank employees during a previous armed bank robbery. Finally, it found that defendant’s prior convictions demonstrated he was a violent person. These were all permissible considerations under 18 U.S.C. § 3553. U.S. v. Warren, 737 F.3d 1278 (10th Cir. 2013).

10th Circuit finds court not obligated to make Rule 32 findings on legal issue. (765) Rule 32(i)(3)(B) requires that, at sentencing, a court must, “for any disputed portion of the presentence report or other controverted matter,” attach to the PSR findings of fact addressing the controverted matter or determine that such findings are unnecessary. A defendant’s attempt to controvert legal determinations, or even ultimate factual conclusions, drawn in a PSR does not implicate the district court’s fact-finding obligations under Rule 32. Here, defendant made no specific allegations of factual inaccuracy concerning his PSR. Instead, he attempted to controvert its characterization of his prior Texas conviction as a crime of violence. However, the characterization of a conviction as a crime of violence is a question of law, not of fact. Because defendant challenged only this legal conclusion, rather than disputing factual inaccuracies in the PSR, the Tenth Circuit found that the district court was not required to make Rule 32(i)(3)(B) findings. U.S. v. Cereceres-Zavala, 499 F.3d 1211 (10th Cir. 2007).

10th Circuit says court could not satisfy obligations to resolve disputed matters simply by adopting PSR. (765) The district court found that defendant obstructed justice by threatening a government informant. Defendant argued that the increase was erroneous because the court relied solely on hearsay statements and representations described second-hand in the PSR. It was undisputed that the government did not present any live witness or documentary evidence regarding the alleged intimidation incident at the sentencing hearing. At the conclusion of the hearing, the court stated that it was going to adopt the probation officer’s report in the PSR. Guideline § 6A1.3(b) requires a court to resolve disputed sentencing factors at a sentencing hearing in accordance with Rule 32(c)(1). A district court may not satisfy its obligation under Rule 32(c)(1) by simply adopting the PSR as its finding. The Tenth Circuit held that the imposition of the obstruction increase was erroneous, because the court did not properly resolve disputed matters as to the increase. U.S. v. Guzman, 318 F.3d 1191 (10th Cir. 2003).

10th Circuit holds that objections were insufficient to invoke fact-finding requirement of Rule 32(c)(1). (765) The PSR recommended a § 3C1.2 reckless endangerment increase because while in the presence of children, defendant hid his gun in a water turn-off hole. Defendant argued that the PSR mischaracterized his conduct as “throwing the handgun on the ground” when his actual conduct was dropping the gun into the hole. Defendant also claimed that the water turnoff hole had a metal cover on it. After the district court applied the § 3C1.2 increase anyway, defendant argued that the court failed to make findings in response to his objections to the PSR. The Tenth Circuit found that these two objections were insufficient to invoke the fact-finding requirement of Rule 32(c)(1). At sentencing, defendant withdrew his contention relating to whether the hole had a metal cover. Further, the point relating to whether the gun was thrown or dropped was immaterial, for the objection related only to semantics. The material fact was whether defendant did in fact leave a gun behind in the presence of children. No objection was levied against this fact, thus no specific allegation of factual inaccuracy existed to make this matter controverted. However, the court failed to resolve two other disputed facts concerning defendant’s history of drug trafficking. Because these two disputed facts were obviously not relied on by the court in arriving at its sentence, the case was remanded “for the ministerial task of entering a determination that [the court] did not take the controverted matters into account in sentencing” defendant. U.S. v. Brown, 314 F.3d 1216 (10th Cir. 2003).

10th Circuit says court not required to make Rule 32(c)(1) findings where defendant’s objections were untimely. (765) Defendant challenged his receipt of an organizer enhancement, claiming that the district court failed to make the specific findings of fact required by Fed. R. Crim. P. 32(c)(1). The Tenth Circuit held that defendant could not invoke rule 32(c)(1) because he did not properly “controvert” the assertion that he was an organizer or leader. Then PSR was delivered to him on February 29, 2000. However, he raised no objections to the PSR until his sentencing hearing on April 11, 2000, 42 days later. Under Rule 32(b)(6)(B), objections to the PSR must be submitted within 14 days of receipt. The probation office must then submit the PSR, together with an addendum responding to any unresolved objections at least seven days before the sentencing hearing. Because defendant’s objections were untimely, the sentencing court properly proceeded as if no objection had been made. The court was entitled to rely upon the PSR without making independent factual findings. U.S. v. Overholt, 307 F.3d 1231 (10th Cir. 2002).

10th Circuit says failure to make Rule 32(b) loss findings was not plain error. (765) Defendant was involved in the fraudulent sale of American securities in Germany. In calculating loss, the district court used defendant’s $650,000 gain, rather than the estimated $18-25 million in actual loss to the victims. The government contended for the first time on appeal that the district court erroneously failed to make findings explaining why defendant’s gain was a reasonable estimate of loss. The Tenth Circuit found no plain error. The government chose not to ask the trial court to explain its reasons. The failure to make specific findings under Rule 32(c)(1) does not rise to the level of obvious and substantial error. U.S. v. Brown, 164 F.3d 1146 (10th Cir. 1998).

10th Circuit remands for court to properly resolve disputed matters. (765) Defendant argued that the district court failed to make specific factual findings regarding his objections to the PSR. At sentencing, the court stated that it adopted the factual findings and guideline applications in the PSR and that there was no need for an evidentiary hearing because there were no disputed facts. The Tenth Circuit remanded because the court did not follow Rule 32(c)(1). A district court may not satisfy its obligation to resolve disputed matters simply by adopting the PSR. The court failed to make finding resolving the disputed matters or to declare that it did not intend to take the controverted matters into account at sentencing. U.S. v. Romero, 122 F.3d 1334 (10th Cir. 1997).

10th Circuit says Rule 32 did not cover defendant’s legal challenges to PSR. (765) Defendant complained that the district court failed to resolve numerous objections he made to the PSR, in violation of Rule 32(c)(3)(D). The Tenth Circuit found no Rule 32 violation since defendant raised legal objections to the PSR’s determination of his sentence rather than objections to factual inaccuracies. Rule 32 is not a vehicle for making legal challenges to sentencing. U.S. v. Furman, 112 F.3d 435 (10th Cir. 1997).

10th Circuit finds adoption of PSR not sufficient to resolve disputed matters. (765) Defendant argued that the district court erred in failing to make specific factual findings on his objection to a § 3C1.1 obstruction of justice enhancement. The Tenth Circuit agreed that the court’s adoption of the probation department’s analysis did not satisfy its obligations under Rule 32(c)(3)(D). A court may not satisfy its obligation by simply adopting the PSR as its finding on a disputed matter. U.S. v. Farnsworth, 92 F.3d 1001 (10th Cir. 1996).

10th Circuit finds government abandoned effort to enhance sentence by failing to object to PSR. (765) The government filed a notice under 21 U.S.C. § 851 of its intent to seek an enhanced mandatory minimum penalty based on a previous drug conviction. The enhancement would have raised the mandatory minimum sentence to 20 years’ imprisonment, ten years’ supervised release, and an $8 million fine. However, defendant’s PSR stated that she was subject to a mandatory minimum sentence of ten years’ imprisonment, five years’ supervised release, and a discretionary denial of federal benefits for five years. The government did not object to the PSR either before or during the sentencing hearing. The Tenth Circuit held that the government’s failure to object to the PSR constituted an abandonment of its effort to obtain an enhanced sentence. When the government failed to object, defendant was entitled to believe that there was no need to challenge these penalties. U.S. v. Ivy, 83 F.3d 1266 (10th Cir. 1996).

10th Circuit holds that defendant’s apology to assault victim was not a disputed fact. (765) Defendant was convicted of assaulting his ex‑wife with a dangerous weapon. He charged that the district court failed to make specific findings on contested issues material to acceptance of responsibility—in particular, whether he apologized to his wife. The Tenth Circuit held that whether defendant apologized was not a controverted factual matter that required findings under Rule 32(c)(1). Although the government asserted in its addendum to the PSR that defendant did not apologize, during the sentencing hearing it argued that defendant’s apologies did not constitute acceptance of responsibility. In denying the reduction, the court relied on the PSR and the trial itself. The trial included testimony from the wife that defendant apologized following the assault and before his arrest. The district court did not rely on the victim’s statements in the PSR concerning her degree of injury, but on the testimony at trial. U.S. v. Murray, 82 F.3d 361 (10th Cir. 1996).

10th Circuit says accessory must know murder was premeditated to be held accountable for first‑degree murder. (765) Defendant and others left a bar in the same car. Two of the men had been arguing. One man pulled a knife and stabbed the other repeatedly. He then told defendant, “Finish it.” Defendant took the knife, and struck the victim two or three times with the knife. The killer was convicted of first‑degree murder and defendant later pled guilty to being an accessory after the fact. Defendant objected to the PSR’s conclusion that he was an accessory to first degree murder, claiming he did not know that the murder was premeditated. The Tenth Circuit held that the district court erred by adopting the PSR’s conclusion without addressing this objection. Defendant was an accessory to a murder under 10 U.S.C. § 918. Section 918 does not distinguish between first and second degree murder. To determine the most analogous guideline, the district court must determine defendant’s state of mind. Defendant could only be punished as an accessory to first degree murder if he knew the murderer acted with premeditation. U.S. v. Henning, 77 F.3d 346 (10th Cir. 1996).

10th Circuit requires defendant to object to district court’s failure to make finding under Rule 32(c)(3)(D). (765) Defendant argued to the district court that the presentence report mischaracterized certain trial testimony. The court made a general finding that the presentence report was accurate. Defendant argued on appeal that this general finding did not satisfy Rule 32(c)(3)(D). Because defendant did not make a separate objection to the district court’s failure to make a Rule 32(c)(3)(D) finding, the Tenth Circuit limited its review to whether the failure to make a finding was plain error. There is no caselaw holding that a violation of this rule rises to the level of plain error. U.S. v. Williamson, 53 F.3d 1500 (10th Cir. 1995).

10th Circuit remands because court did not make written findings concerning defendant’s objections to PSR. (765) The 10th Circuit held that the district court violated Rule 32(c)(3)(D) by failing to make written findings in light of defendant’s objections to the PSR. When faced with specific allegations of factual inaccuracy by a defendant, the court cannot satisfy Rule 32(c)(3)(D) by simply stating that it adopts the factual findings and guideline application in the PSR. The court must either make findings as to each allegation, or state that it did not take the controverted matters into account in sentencing defendant. U.S. v. Pedraza, 27 F.3d 1515 (10th Cir. 1994).

10th Circuit says factual findings unnecessary where defendant only challenges PSR’s legal conclusions. (765) Defendant argued that the district court violated Fed. R. Crim. P. 32(c)(3)(D) by failing to make express findings of fact regarding the accuracy of information in the PSR. The 10th Circuit held that factual findings were unnecessary, because defendant did not identify any factual inaccuracies in the report. Defendant only contested the report’s legal conclusions. U.S. v. Tovar, 27 F.3d 497 (10th Cir. 1994).

10th Circuit allows upward departure for tribal convictions, unprosecuted conduct, and crime while on release. (765) Defendant was convicted of abusive sexual contact with a child under the age of 12. The district court departed upward based on three prior convictions for driving under the influence and two tribal and two non-tribal arrests for sexual assault which were not counted in his criminal history. In addition, defendant had been indicted in state court for sexual offenses committed while on bond for the instant offense. The 10th Circuit found that the tribal court sentences, the prior similar adult criminal conduct, and the conduct involving a similar offense while on release, were all proper bases for an upward departure. Defendant’s prior DUI offenses were not, however, since they were included in his criminal history. U.S. v. Yates, 22 F.3d 981 (10th Cir. 1994).

10th Circuit finds adoption of PSR did not constitute compliance with Rule 32. (765) Under Fed. R. Crim. P. 32(c)(3)(D), if a defendant challenges the factual accuracy of the presentence report, the district court must either make a finding as to the allegation or state that the controverted matter will not be taken into account at sentencing. Here, the district court made no findings on the defendant’s objections. The 10th Circuit rejected the government’s claim that the court complied with Rule 32 by stating in the judgment that the court was adopting the factual findings and guidelines application in the presentence report. U.S. v. Roederer, 11 F.3d 973 (10th Cir. 1993).

10th Circuit rules that defendant waived court’s failure to resolve disputed issue. (765) Defendant argued that the district court failed to resolve a dispute between the presentence report and his objections to the report filed prior to sentencing. The 10th Circuit ruled that defendant waived his right to such a resolution by failing to object at sentencing to the judge’s alleged failure to resolve the dispute. Moreover, the court resolved the factor in dispute by effectively adopting the presentence report. U.S. v. Toledo, 985 F.2d 1462 (10th Cir. 1993).

10th Circuit remands for statement of reasons for imposing firearm enhancement. (765) The district court imposed an enhancement under section 2D1.1(b)(1) for possessing a firearm during a drug trafficking crime, but over objection, failed to make any oral or written findings to support the enhancement. Although the court stated it would prepare a short written ruling on each of defendant’s objections, it never did. The 10th Circuit remanded for the court to state its reasons for attributing a weapon to defendant. Under 18 U.S.C. section 3553(c), the district court must make a generalized statement of its reasons for imposing a particular sentence so that the appellate court does not “flounder in the zone of speculation.” A highly detailed statement is not necessary for review, but the appellate court must be able to tie the court’s sentencing decision to a factual basis in the record to be assured that basis meets the proper legal standard underpinning the enhancement. A statement accepting the presentence report as corrected is insufficient. U.S. v. Slater, 971 F.2d 626 (10th Cir. 1992).

10th Circuit holds that defendant is not entitled to review resolution of disputed matters prior to sentencing. (765) The 10th Circuit rejected defendant’s claim that the district court erred in failing to resolve disputed findings under Fed. R. Crim. P. 32(c)(3)(D) prior to the imposition of his sentence. Rule 32 does require the district court to reduce its findings regarding disputed materials to written form and attach them to the presentence report. The Rule does not expressly afford defendant the opportunity to review such findings prior to imposition of sentence. U.S. v. Burger, 964 F.2d 1065 (10th Cir. 1992).

10th Circuit affirms reliance on probable loss estimate in presentence report. (765) The 10th Circuit rejected defendant’s argument that the loss caused by his fraud under section 2F1.1 should be based solely upon the actual loss of the victims. Guideline commentary indicates that if the probable or intended loss can be determined, that figure should be used if it is larger than the actual loss. At sentencing, the district court adopted the probable and intentional monetary loss figures in the presentence report. Although this information was hearsay, it had sufficient indicia of reliability to support its probable accuracy. As an officer of the court, the probation officer may be considered a reliable source. Also, bankers who furnished information as to possible or probable loss which defendant was attempting to inflict by fraudulent loan applications could be considered reliable sources. In addition, the trial judge was entitled to use the knowledge acquired while presiding over defendant’s trial. U.S. v. Hershberger, 962 F.2d 1548 (10th Cir. 1992).

10th Circuit rules that adversary hearing on factual disputes is not mandatory in a sentencing hearing. (765) The 10th Circuit rejected defendant’s claim that the district court violated Fed. F. Crim. P. 32(c)(3)(D) by failing to conduct an adversary hearing to resolve certain factual disputes. Rule 32(c)(3)(A), not Rule 32(c)(3)(D), pertained to this issue. Under this Rule, it is discretionary with the court, rather than mandatory, to receive testimony or other information relating to an alleged factual inaccuracy in the presentence report. In this case the court offered defendant the opportunity to present testimony and further information in addition to his written objections to the presentence report, but defendant declined this offer and chose to stand on his written objections. U.S. v. Hershberger, 962 F.2d 1548 (10th Cir. 1992).

10th Circuit affirms that defendant had ample opportunity to object to enhancement recommended in presentence report. (765) The 10th Circuit rejected defendant’s claim that the district court failed to give him the opportunity to object to an enhancement recommended in his presentence report. At sentencing, the district court asked whether defense counsel had any objections to the sentencing report other than those contained in a motion filed prior to sentencing. The motion did not object to the enhancement. Defense counsel stated that he had reviewed the report with defendant and that there were no additional objections. There was no merit to defendant’s claim that the district court erroneously failed to make specific findings as to the accuracy of the information in the presentence report related to the enhancement. Rule 32(c)(3)(D) contemplates that the defendant or his counsel allege any factual inaccuracy in the presentence report before the district court is require to make a particular finding as to the factual inaccuracy. Defendant’s failure to object waived the issue on appeal. U.S. v. Kay, 961 F.2d 1505 (10th Cir. 1992).

10th Circuit finds that court adequately explained why it was not bound by amount of drugs specified in plea agreement. (765) The plea agreement stated that defendant possessed 11.2 grams of cocaine at the time of his arrest. The presentence report stated that the offense involved 109.3 grams of cocaine. Over defendant’s objection, he was sentenced for the greater amount. The 10th Circuit found that the district court complied with Fed. R. Crim. P. 32(c)(3)(D) by adequately explaining why it was not bound by the amount specified in the plea agreement. The district court considered all of the facts and the course of conduct, defendant’s own statements and the drugs that were recovered from both of the rooms used to commit the offense. However, because the district court failed to attach a written copy of its factual findings to the presentence report as required by Rule 32(c)(3)(D), the case was remanded for the district court to tend to this ministerial matter. U.S. v. Jackson, 950 F.2d 633 (10th Cir. 1991).

10th Circuit remands because court failed to follow Rule 32 concerning defendant’s objections to drug quantity. (765) In a series of related cases, defendants objected to the presentence report’s conclusion that their organization was responsible for the distribution of at least seven kilograms of cocaine. At sentencing, the district court listened to the statements of counsel, and, in effect, overruled the objections and accepted the report. The 10th Circuit remanded because the court failed to comply with Fed. R. Crim. P. 32(c)(3)(D). The rule requires that when a defendant challenges information in his presentence, report, the district court must either make a factual finding regarding the accuracy of the challenged information or expressly state that it did not consider the challenged information. Defendants’ objections to the presentence report were not perfunctory but were specific. U.S. v. Anthony, 944 F.2d 780 (10th Cir. 1991); U.S. v. Harris, 944 F.2d 784 (10th Cir. 1991); U.S. v. Price, 945 F.2d 331 (10th Cir. 1991); U.S. v. Leroy, 944 F.2d 787 (10th Cir. 1991).

10th Circuit finds district court need not make findings concerning disputed application of the guidelines. (765) Defendant contended that the district court failed to comply with Fed. R. Crim. P. 32(c)(3)(D)’s requirement that the district court either make a finding as to the accuracy of any disputed factual matter or state that the controverted matter would not be relied upon in sentencing. Defendant had contested the presentence report’s conclusion that his prior state conviction for misdemeanor menacing was not similar to disorderly conduct for purposes of exempting it from his criminal history under guideline § 4A1.2(c)(1), that a deferred judgment was a valid criminal justice sentence under guideline § 4A1.1(d), and that a prior state offense was not part of the instant offense. The 10th Circuit found that the district court was not obligated to make Rule 32(c)(3)(D) findings with respect to these disputed matters. Defendant challenged the application of the guidelines to an uncontested set of facts, which does not implicate Rule 32(c)(3)(D). U.S. v. Cox, 934 F.2d 1114 (10th Cir. 1991).

10th Circuit finds that district court need not make factual findings where defendant did not challenge presentence report. (765) Defendant argued that it was improper for the district court to determine that defendant’s offense involved more than minimal planning because the court had failed to make any factual findings. The presentence report had recommended an increase for more than minimal planning based upon defendant’s procurement and use of bolt cutters, defendant’s ability to avoid an alarm system, and defendant’s knowledge of which two of fifty trailers to burglarize. Defendant did not challenge these facts, but simply asserted that the burglary did not involve any special knowledge. The 10th Circuit held that since defendant did not challenge the factual accuracy of the presentence report, the district court was not obligated to reduce its factual findings to writing. The 10th Circuit also found that the factors listed in the presentence report evidenced that defendant’s offense involved more than minimal planning. U.S. v. Johnson, 911 F.2d 403 (10th Cir. 1990).

10th Circuit finds that district court did not comply with Rule 32. (765) Rule 32(c)(3)(D), Fed. R. Crim. P., requires that when information in the presentence report is challenged, the trial court must either (i) make a factual finding, or (ii) state that it is not relying on the disputed information. The district court found that defendant’s presentence report accurately summarized the confidential informant’s report, but did not make an express finding that that report was accurate. Since the court did not indicate that it was not relying on the information, the 10th Circuit found that the district court had not complied with Rule 32(c)(3)(D). U.S. v. Alvarado, 909 F.2d 1443 (10th Cir. 1990).

10th Circuit holds that failure to append findings upon controverted matters in presentence report can be corrected by motion. (765) The court made findings as to each alleged inaccuracy in the presentence report, ruling against the defendant on all points. However, the court failed to append its findings to the presentence investigation report. The court of appeals found that the failure to append the findings to the PSR was error but could be corrected by remanding the case for the ministerial task of attaching of the proper record to the presentence report. The court stated that in the future, the correct method for correcting these clerical errors would be to bring a motion under Fed. R. Crim. P. 36, rather than bringing the matter to the attention of the court of appeals. U.S. v. Wach, 907 F.2d 1038 (10th Cir. 1990).

11th Circuit upholds sex offender registration for former D.A. who stroked minor’s genitals during drug test. (765) Defendant, a local district attorney, fondled the genitals of several individuals who were urinating in a cup as part of a drug test. He was convicted before a magistrate of depriving individuals of their right to be free from unreasonable searches. As a condition of supervised release, the magistrate ordered defendant to register as a sex offender. Defendant appealed to the district court, challenging only the order that he register as a sex offender. His argument focused solely on the age of one of the victims. The district court affirmed the magistrate judge’s sentence, and the Eleventh Circuit upheld the district court’s decision. While defendant raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court, and thus the argument was waived or abandoned. Moreover, the magistrate examined the underlying conduct of the offense and correctly determined that defendant had engaged in conduct that by its nature, was a sex offense against a minor. As for the age of the victim, defendant failed to object to the PSR’s statement that one of the victims was a minor, and thus had admitted it for sentencing purposes. U.S. v. Pilati, 627 F.3d 1360 (11th Cir. 2010).

11th Circuit holds defendant’s admissions insufficient to support leadership increase. (765) The PSR recommended a § 3B1.1(a) leadership enhancement, stating that defendant “orchestrated” weekly shipments of marijuana from Texas to Florida, used others to mail or receive those shipments, and enlisted others to join in the scheme. Defendant objected to the PSR’s characterization of the facts. Once a defendant objects to a fact contained in the PSR, the government bears the burden of proving that disputed fact by a preponderance of the evidence, but the government presented no evidence. Defendant did admit during his plea hearing that he orchestrated drug shipments, that he was directly involved in the wire transfer of $343,729 of drug proceeds, and that he, along with his co-conspirators, “utilized other individuals” to mail and receive drug shipments. However, the Eleventh Circuit found that these facts were not enough to support the § 3B1.1(a) leadership enhancement. There was no evidence that defendant exercised decision-making authority over anyone in the conspiracy. At most, he acted in concert with his co-conspirators. U.S. v. Martinez, 584 F.3d 1022 (11th Cir. 2009).

11th Circuit holds that court should have resolved defendant’s objection concerning ability to pay fine. (765) Defendant argued that he was unable to pay the $175,000 fine imposed by the district court. The Eleventh Circuit found that the court considered the pertinent factors before imposing the fine; however, it erred in imposing the fine without ruling on defendant’s challenge to the PSR’s accuracy. Defendant contended that he repeatedly objected to the financial information in the PSR and submitted a financial statement to the probation office showing that he had no money. The PSR that was part of the record on appeal did not state whether the probation officer received a financial statement and did not address defendant’s original objection. The court did not address defendant’s allegation at sentencing that he submitted a financial statement and that the PSR was inaccurate. The district court cannot simply adopt a PSR without ruling on unresolved objections specifically brought to its attention. U.S. v. Khawaja, 118 F.3d 1454 (11th Cir. 1997).

11th Circuit finds insufficient evidence that gun dealer used marijuana. (765) Defendant pled guilty to conspiring to deal in firearms without a license. The district court enhanced his offense level under § 2K2.1(a)(6) for being a marijuana user. The Eleventh Circuit reversed, finding that the government did not prove that defendant was a marijuana user. Defendant’s statement to an undercover agent that he “quit smoking pot” did not provide any indication as to when defendant quit. Under § 2K2.1(a)(6), a defendant’s unlawful use of a controlled substance must be ongoing and contemporaneous with the commission of the offense. The government’s “proffer” that it could produce three witnesses who would testify to smoking marijuana with defendant at some unspecified time in the past also did not support the enhancement in light of defendant’s objections. Defendant presented four witnesses at sentencing who testified that they had known defendant for several years and never saw him smoke marijuana. Where a defendant objects to an allegation in the PSR and offers rebuttal evidence, a court may not accept a conclusion in the PSR without evidentiary support. U.S. v. Bernardine, 73 F.3d 1078 (11th Cir. 1996).

11th Circuit remands because court did not follow Jones procedure after imposing sentence. (765) Defendant challenged, for the first time on appeal, the district court’s restitution order. The Eleventh Circuit remanded because the district court failed to comply with U.S. v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other grounds, 984 F.2d 1136 (11th Cir. 1993) (en banc). Under Jones, after imposing a sentence, the district court must give the parties an opportunity to object to the court’s ultimate findings of fact and conclusions of law. Moreover, the court must elicit from counsel a full articulation of the grounds on which any objection is based. Here, the court did not solicit, and defendant did not make, any objections to the restitution order or any other portion of the sentence. U.S. v. Page, 69 F.3d 482 (11th Cir. 1995).

11th Circuit remands for factual findings to support drug quantity determination. (765) A surveillance tape showed that during one four-hour period, 66 drug transactions took place at one residence. The probation officer used this tape to estimate that five drug conspirators were responsible for more than 500 grams of cocaine base. Each defendant objected. At four of the sentencing hearings, the court adopted the PSR without testimony or findings. At one hearing, the court heard testimony regarding that defendant’s role in the operation. The Eleventh Circuit remanded for factual findings to support the drug quantity determinations. The court made no findings as to the total quantity distributed by the conspiracy, nor what sales were reasonably foreseeable to four of the defendants. There was no evidence that the surveillance tape represented typical sales activity, as it was made on a Friday and thus a payday. Adoption of the PSR did not respond to defendants’ objections because the PSR did not directly address this issue. The PSR only established the cocaine base was available daily on an around-the-clock basis. U.S. v. Butler, 41 F.3d 1435 (11th Cir. 1995).

11th Circuit remands for individualized finding of foreseeability. (765) Defendant challenged the district court’s decision to attribute to him all 700 kilograms of cocaine involved in the conspiracy, rather than the 70 kilograms hidden in a truck he drove. The 11th Circuit remanded for an individualized finding of the quantity of cocaine attributable to defendant. At the sentencing hearing, defendant did not request an individualized finding of fact as to what quantity was reasonably foreseeable to him, and the district court did not make one. Under these circumstances, the district court was entitled to rely on the factual statements in the PSR without making an individualized finding. However, defendant’s PSR was ambiguous. Although it stated that the offense involved 700 kilograms, it also stated that defendant was a “hired hand” who probably did not know the quantity of cocaine he was transporting. U.S. v. Perez-Tosta, 36 F.3d 1552 (11th Cir. 1994).

11th Circuit holds that defendant waived objections to PSR at initial sentencing hearing. (765) Defendant pled guilty to drug charges. He filed written objections to his PSR. At sentencing, however, he chose not to proceed with his objections, since the government moved for a downward departure. Defendant then received a sentence of five years’ probation. After he sold drugs again, his probation was revoked, and the district court sentenced him based on the original PSR. The 11th Circuit held that defendant waived all his objections to the PSR at his original sentencing hearing. Thus, the district court was not required to make any findings as to any alleged factual inaccuracies in the report, and could sentence defendant based on the report. U.S. v. Milano, 32 F.3d 1499 (11th Cir. 1994), superseded by statute on other grounds as stated in U.S. v. Cook, 291 F.3d 1297 (2002).

11th Circuit affirms despite failure to give defendant opportunity to object to final factual findings and legal conclusions. (765) In U.S. v. Jones, 899 F.2d 1097 (11th Cir.), cert. denied 111 S.Ct. 275 (1990), the 11th Circuit held that the district court must give the parties an opportunity not only to resolve the objections contained in the addendum but also to object to the district court’s ultimate findings of fact and conclusions of law. In this case, defendant did not raise the “technical violation” of Jones, but the 11th Circuit noted that the district court summarily concluded the sentencing hearing without giving defendant the opportunity to object to its ultimate factual findings and legal conclusion. Nevertheless, the record was sufficient for meaningful appellate review, and the court affirmed the sentence. U.S. v. Cruz, 946 F.2d 122 (11th Cir. 1991).

11th Circuit affirms district court’s actions despite failure to make explicit findings of fact and conclusions of law. (765) Defendant argued that the district court failed to make explicit findings of fact and conclusions of law regarding controverted matters at sentencing as required by guideline § 6A1.3(b) and Fed. R. Crim. P. 32(c)(3)(D). The 11th Circuit found that there was adequate evidence to support the district court’s summary disposition of defendant’s objections. Defendant’s argument for a downward departure under guideline § 5K1.1 was meritless because the government specifically declined to move for such a departure. Defendant’s claim that an enhancement for more than minimal planning was prohibited because he already received an enhancement under guideline § 2F1.1(b)(2)(A) was also meritless. The commentary indicating that the adjustment was alternative, rather than cumulative, referred only to guideline § 2F1.1(b)(3). Finally, defendant’s claim of acceptance of responsibility had no support in the record. Although defendant acknowledged responsibility for his criminal behavior, since his release on bond he committed nine additional offenses and faced trial in at least four cases involving seven additional charges. U.S. v. Villarino, 930 F.2d 1527 (11th Cir. 1991).

11th Circuit upholds determination of amount of cocaine where defendant failed to object to presentence report. (765) The 11th Circuit rejected defendant’s challenge to his base offense level because he failed to object to the presentence report’s determination that 15 kilograms were involved in the offenses. The district court specifically adopted the Probation Department’s finding of fact on the basis of defendant’s failure to object. Moreover, the district court’s determination of the amount of cocaine was not clearly erroneous, given (a) the size of the conspiracy, (b) the amount of cocaine seized, (c) the triple-beam scales, heat-sealing machine and large number of zip-lock bags found, and (d) a co-conspirator’s testimony as to the value of cocaine she sold on a daily basis. U.S. v. Christopher, 923 F.2d 1545 (11th Cir. 1991).

11th Circuit announces strict rules for preserving sentencing issues on appeal. (765) Exercising its supervisory power, the 11th Circuit instructed the district courts to elicit “fully articulated objections” — following imposition of sentence — to the court’s ultimate findings of fact and conclusions of law. “Where the district court has not elicited fully articulated objections following the imposition of sentence, this court will vacate the sentence and remand for further sentencing in order to give the parties an opportunity to raise and explain their objections. Where the district court has offered the opportunity to object and the party is silent or fails to state the grounds for objection, objections to the sentence will be waived for purposes of appeal, and this court will not entertain an appeal based upon such objections, unless refusal to do so would result in manifest injustice.” The new procedure becomes effective 120 days after the date of this opinion. U.S. v. Jones, 899 F.2d 1097 (11th Cir. 1990), overruled on other grounds by U.S. v. Morrill, 984 F.2d 1136 (11th Cir. 1993).

D.C. Circuit says defendant who waived earlier written objection cannot raise issue on appeal. (765) Defendant filed written objections to the criminal history calculation in his PSR. At sentencing, defendant, through counsel, withdrew his earlier written objections, stating that “the calculations by the probation officer of 57 to 71 [months] are calculated correctly with the Criminal History to a Category [V], so, therefore, that’s the range [for sentencing].” Defendant then stated that he “accept[ed] as accurate” the “calculations of the probation officer” and was “completely satisfied … with the accuracy of the [PSR].” On appeal, defendant objected to the district court’s acceptance of the PSR’s calculation of his criminal history. The D.C. Circuit held that because defendant waived his earlier written objection on this issue at sentencing, he could no longer pursue the issue on appeal. Furthermore, defendant’s withdrawal of his objection constituted an invitation to any error that the PSR’s criminal history calculation created, further precluding appeal. U.S. v. Moore, 703 F.3d 562 (D.C. Cir. 2012).

D.C. Circuit holds court abused discretion in denying defendant hearing to resolve disputed issue in § 3583 motion. (765) Defendant, convicted of possessing a mixture of cocaine base, moved under 18 U.S.C. § 3583(c)(2) to reduce his sentence based on Amendment 484. This Amendment provides that a drug “mixture” under § 2D1.1 “does not include materials that must be separated from the controlled substance before the controlled substance can be used.” Defendant contended that the mannitol (sugar) contained in his crack mixture could not be smoked, and sought a hearing offering to produce expert testimony on the matter. The district court denied defendant’s request for a sentence modification and for a hearing, ruling that sugar was simply a cutting agent that was properly included in the weight of drugs. Guideline § 6A1.3 allows hearings when “any factor important to the sentencing determination is reasonably in dispute.” The D.C. Circuit rejected the government’s argument that § 6A1.3 does not apply to sentence modifications under § 3582(c) (2). There is no material distinction between the two. Given that defendant’s proposition was undisputed (the government claimed without any support that sugar was a cutting agent), the panel held that the district court abused its discretion in denying defendant a § 6A1.3 hearing. U.S. v. Byfield, 391 F.3d 277 (D.C. Cir. 2004).

D.C. Circuit holds that district court adequately resolved objections to drug quantity findings. (765) The PSR, in setting the quantity of drugs to attributable to defendant, relied on (1) Andrews’ testimony that Gray gave defendant 31 grams of cocaine base on two occasions; (2) intercepted phone conversations between defendant and Gray; (3) Dixon’s testimony that he saw Gray handing 14 grams of heroin to defendant; and (4) Andrews’ testimony that defendant regularly asked Gray for heroin and cocaine to sell because defendant needed money, and that Gray regularly gave defendant drugs to resell. The D.C. Circuit held that the district court sufficiently addressed defendant’s challenges to the factual basis for the conclusions in the PSR. Although evidence as to the amount of heroin was sparse, Andrews’ testimony that Gray gave defendant cocaine base on at least two occasions was specific as to quantity, and that amount, from 62-93 grams, was sufficient to justify defendant’s offense level of 32. With respect to the contrary testimony regarding the availability of cocaine base in the District during the summer of 1999, the district court referred to Andrews’ testimony in its ruling, implicitly indicating that it was crediting Andrews’ testimony. Given that defendant never objected in the district court on the basis of the contrary trial testimony, the district court’s factual findings were sufficient. U.S. v. Graham, 317 F.3d 262 (D.C. Cir. 2003).

D.C. Circuit finds PSR’s scope of conspiratorial agreement was not disputed. (765) Defendant was convicted of drug conspiracy charges based on evidence that he and his two brothers jointly purchased multiple kilograms of cocaine from a large drug organization. He argued that he did not conspire with his brothers and that he should have been sentenced for his individual participation in the overall conspiracy. The D.C. Circuit found no basis for reversal despite the absence of detailed findings by the district court. The government proffered reliable and specific evidence about the scope of defendant’s conspiratorial agreement and the quantity of drugs foreseeable to him. Where the defense offers no evidence to refute the government’s proffer, the district court may adopt these facts without further inquiry. Here, defendant failed to dispute the representations in the government’s sentencing memo and in the PSR about the scope of his conspiratorial agreement. Therefore, the district court could properly view defendant’s responsibility as coextensive with that of his brothers U.S. v. Booze, 108 F.3d 378 (D.C. Cir. 1997).

D.C. Circuit says adoption of PSR did not satisfy Rule 32’s requirement of express findings. (765) Defendants argued that the district court violated Rule 32 by failing to resolve their challenges to the information in the PSR. The government conceded that the court failed to make express findings, but argued that it made implicit findings by adopting the PSR. The District of Columbia Circuit held that this did not contain sufficient detail and clarity to satisfy Rule 32. Defendant’s objections to the PSR’s quantity determinations were serious, and could have reduced defendants’ sentence from life to 30 years. Determining the quantity of drugs required culling together statements from several witnesses who testified during trial. The PSR contained no citation to the trial transcript to support its quantity calculations. Since defendants claimed there was insufficient support in the record for these calculations, simply adopting the report, itself void of any details, did not constitute a “finding” on their claims. U.S. v. Graham, 83 F.3d 1466 (D.C. Cir. 1996).

D.C. Circuit holds that objections were insufficient to place PSR’s description of dismissed counts into dispute. (765) Defendant pled guilty to one count of a four-count indictment for fraud. The presentence report described the three dismissed counts and recommended that the district court consider them as relevant conduct. The D.C. Circuit held that the district court properly found, based solely on the facts in the PSR, that defendant committed the acts in the dismissed counts. Defense counsel’s objections to the PSR were insufficient to place the report’s description of the dismissed counts into dispute. Counsel’s argument that the presentence report alone did not meet the government’s burden of proof did not challenge the accuracy or reliability of any factual assertion regarding the dismissed counts. Her argument that the acts described in the report did not qualify as relevant conduct also did not dispute a factual assertion. U.S. v. Pinnick, 47 F.3d 434 (D.C. Cir. 1995).

D.C. Circuit holds that adopting PSR’s findings was plain error. (765) Defendant challenged for the first time on appeal the district court’s adoption of the presentence report’s drug quantity findings. The D.C. Circuit held that the court’s adoption of the PSR’s findings, without further comment or analysis, was clearly erroneous. The report suggested that defendant was responsible for all reasonably foreseeable drug quantities attributable to his co-conspirators, without requiring that the acts be “in furtherance of” a joint undertaking. The only factual finding that would support holding defendant liable on an aiding and abetting theory was clearly erroneous. Sentencing courts may not rely on unchallenged factual findings in a presentence report if such findings are internally contradictory, wildly implausible, or in direct conflict with evidence the court heard at trial. U.S. v. Saro, 24 F.3d 283 (D.C. 1994).

D.C. Circuit remands for factual findings underlying sentence. (765) The D.C. Circuit remanded to permit the district court to clarify the factual findings underlying defendant’s sentence. The government acknowledged that the district court made no factual findings and did not indicate that it was rejecting defendant’s arguments or that it was adhering to the presentence report. The remand did not mean that the actual sentence imposed by the district court was necessarily erroneous, only that the appellate court could not adequately review the sentence until the factual predicate was made explicit. U.S. v. Salamanca, 990 F.2d 629 (D.C. Cir. 1993).

Query	Gets the documents with
stock market	‘stock’ or ‘market’ or both
“stock market”	the phrase ‘stock market’
+stock +market	‘stock’ and ‘market’
+stock -market	‘stock’ but not ‘market’
+president -“United States”	‘president’ but not ‘United States’
(stock OR market) AND NOT president	‘stock’ or ‘market’, and without ‘president’