On Appeal from the United States District Court for the District of New Jersey, D.C. Criminal No. 85-00177.
Sloviter and Stapleton, Circuit Judges, and Broderick, District Judge.*fn*
This appeal concerns the district court's obligation under Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure to make findings as to alleged factual inaccuracies in a defendant's presentence investigation report. We must determine whether that obligation applies when the defendant's allegation is not that there is factual inaccuracy but that inaccurate factual inferences are likely to be drawn from the report's presentation of concededly accurate facts.
In May 1985, Luis Gomez was arrested at his home. The arresting officers found in Gomez' apartment $55,000 in a suitcase, a scale, and records of drug transactions. Subsequently, Gomez and four others were indicted on three counts charging conspiracy to distribute two kilograms of cocaine in violation of 21 U.S.C. § 846, distribution of one-quarter kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1), and possession with intent to distribute one-quarter kilogram of cocaine in violation of 21 U.S.C. § 841(a)(1). In October 1985, Gomez pled guilty to the count charging possession. Under the terms of his plea agreement, the remaining two counts were dismissed.
In December 1985, Gomez appeared before the district court for sentencing. The court confirmed that defense counsel had reviewed the presentence report and asked whether counsel or Gomez had discovered any errors. Counsel responded: "No, your Honor. We have perhaps an objection to some of the comments in the report, which I'll address in a moment. However, I don't find any errors that the court is referring to." App. at 28. Counsel and Gomez signed the form attached to the report which states that counsel and client have reviewed the report, found it "complete and accurate and have no additions or revisions to suggest."
Counsel did complain about the report's "characterization . . . that this defendant bears the highest level of responsibility vis-a-vis the other defendants in this case." App. at 29. The court then noted that Gomez had supplied the cocaine which had been sold to the undercover federal agents and that $55,000 had been found in Gomez' apartment. Counsel conceded these facts, but reiterated his belief that they did not justify treating Gomez "any differently than any of the other defendants in this case with respect to level of culpability." App. at 32. In this context, counsel made clear his contention that the money, scale and records were not the property of Gomez and that Gomez had received only a $200 fee for his part in bringing the parties together and delivering the cocaine.
The court expressed its belief that Gomez was more culpable because he had supplied the cocaine and "without the cocaine, there is no sale." App. at 33. After additional colloquy, the court concluded that counsel and the court had "a philosophical difference . . . as to who was more culpable; the fellow who supplies the drugs or the negotiators." App. at 38. Counsel agreed. Thereafter, following counsel's submission of documents on Gomez' behalf and Gomez' own statement, the court imposed a sentence of nine years' imprisonment with a special parole term of three years. Gomez appeals. We have jurisdiction under 28 U.S.C. § 1291.
When a defendant disputes facts included in a presentence report, Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure requires a sentencing court to resolve those disputes or to determine that it will not rely on the disputed facts in sentencing.*fn1 Any findings or determinations made by the court must be appended to the report before it is sent to either the Bureau of Prisons or the United States Parole Commission. Gomez argues that because the district court failed to hold a hearing and make findings of fact to resolve factual disputes raised by his counsel, his sentencing violated his procedural rights under Rule 32(c)(3)(D).
We first consider the government's contention that failure to request a hearing in the district court is dispositive of the issue on appeal. The government relies on our prior decision in United States v. Matthews, 773 F.2d 48, 51 (3d Cir. 1985), where we stated that when "defendant had an adequate opportunity to examine and correct controverted information . . . counsel cannot ask this court to vacate his client's sentence when counsel failed to make a proper request for an evidentiary hearing as to the presentence report." Id. (citation omitted).
The Matthews situation is distinguishable from that before us because, as we noted there, the district court had followed Rule 32(c)(3)(D)(ii) when it explicitly assured the defendant that it would not consider the disputed allegations in imposing sentence. 773 F.2d at 50. Under those circumstances, the Rule does not require an evidentiary hearing to resolve the disputed facts because a hearing on facts not taken into consideration by the court would be an exercise in futility.
In this case, unlike Matthews, the district court did not explicitly determine that it would not consider the controverted allegations. Rule 32(c)(3)(D) is phrased in mandatory language. If the district court fails to make findings as to disputed facts, it must make a determination that those disputed facts will not be taken into account. The Rule puts that obligation on the court. Therefore, defendant's failure to request an evidentiary hearing is not ...