Unpublished Disposition, 843 F.2d 502 (9th Cir. 1988)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.David Jay STERLING, Defendant-Appellant.
Nos. 87-1035 to 87-1038.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 9, 1987.Decided March 24, 1988.
Before GOODWIN and FLETCHER, Circuit Judges, and KING,** District Judge.
MEMORANDUM*
Sterling appeals the sentence imposed on him after he pled guilty to armed bank robbery and use of a dangerous weapon. We affirm the sentence but remand for the district court to prepare and attach written findings to the presentence report.
FACTS
Appellant David Jay Sterling and Ronald Johnson, working together, robbed five banks between November 1985 and January 1986. Although they were armed during the robberies, no shots were fired. They were arrested in Louisiana and returned to Arizona.
Sterling's appointed counsel moved for a competency hearing. The district court granted the motion and Sterling was evaluated at the U.S. Medical Center in Springfield, Missouri. A report (the "Springfield report") was submitted to the district court. At a competency hearing, the court found Sterling competent to stand trial. Sterling's attorney objected at the time to "a lot of the material in the report, as being inaccurate and inconsistent."
Appellant then pled guilty to four counts of armed bank robbery in violation of 18 U.S.C. § 2113(d) and one count of using a firearm during a crime of violence, which gives rise to enhanced punishment pursuant to 18 U.S.C. § 924(c). At the time of his plea, both Sterling and his attorney again objected to the contents of the Springfield report.
In another hearing prior to sentencing, Sterling voiced for a third time his concern with the Springfield report, charging it was "so erroneous and so false, I didn't want it following me around the prison system." In addition, Sterling's counsel filed a Memorandum regarding sentencing which referred to Sterling's objections to inclusion of the Springfield report in the presentence report.
At sentencing, counsel told the court that Sterling wanted his objections to the presentence report considered one at a time. Two of those objections are at issue in this appeal. First, Sterling objected to a statement in the report that a suspect in a number of other incidents matched Sterling's description and had committed criminal acts in a method similar to that used by Sterling in a series of acts for which he had been convicted. The court found the statement "undeniable and accurate" and overruled the objection.
Second, appellant objected to the inclusion of the Springfield report as part of the presentence report. The district court stated that any inaccuracies could be pointed out to the doctors or counselors who would be working with Sterling. In any event, the court said, there was no need to go through the objections "line by line and page by page and identify them to the liking of the defendant, [because] that is not going to have any real impact on the sentence imposed by this court."
The district court sentenced Sterling to 105 years, the maximum allowable. Co-defendant Johnson, who was charged with the same crimes but had a less extensive prior criminal history, was sentenced to 45 years.
DISCUSSION
We have jurisdiction under 28 U.S.C. § 1291. We must uphold a district court's choice of sentence unless the court abused its discretion by relying on information it should not have considered. United States v. Chiago, 699 F.2d 1012, 1014 (9th Cir. 1983).
A. Objections to Presentence Report
Under Fed. R. Crim. P. 32(c) (3) (D),1 a sentencing judge must either (1) make a finding as to any controverted information in the presentence report or (2) determine no such finding is necessary because the information will not be taken into account in sentencing. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986).
1. Uncharged Incidents
As to the uncharged incidents in which the presentence report concluded that the suspect matched Sterling's description and modus operandi, Sterling contends that the district court failed to make any finding. This argument fails, for the court noted that it had found the statement "undeniable and accurate."
The mere fact that the court made a finding does not end our inquiry, however. We have held that "a sentence will be vacated on appeal if the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence." Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc). In this case, we need not decide whether the district court's finding of accuracy was justified, because the information in question was not "demonstrably made the basis for sentencing." The presentence report on Sterling detailed a history dating to 1970 of prior convictions, including several for rape, sodomy and sexual abuse, some of them violent. Given this history and the crimes for which Sterling was being sentenced, the district court's imposition of the maximum allowable term was warranted and the district court made clear that inclusion or exclusion of the disputed matters would not have caused him to impose a different sentence.
2. The Springfield Report
Appellant's other objection on appeal is that the court failed to make a finding or a statement of nonreliance as to the Springfield report. We find this argument unsupported by the record.
The crux of Sterling's objection is that the district court's statement was not clear enough. The district court stated that identifying every controverted point in the Springfield report was unnecessary because it was "not going to have any real impact on the sentence imposed by this court." The court further remarked that "I really don't think ... that any factual basis is attached to that type of report. Obviously that is based all on hearsay information.... I don't know that anybody has ever very seriously attached any factual basis to them."
We find these comments sufficient to satisfy the requirement of Rule 32(c) (3) (D) that the court state that the disputed matter will not be considered in sentencing. The court's statement was at least as clear as that upheld in United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984). In that case, the trial court had said of a federal agent's statement included in the presentence report: "What difference does it make what the agent concluded? Anyone can conclude anything they want."
Though we find the district court's statement here complied with Rule 32(c) (3) (D), it would have worked no hardship on the court to be clearer in its remarks. As in Ibarra,
we affirm, but with this caveat: the district courts should follow the command of Fed. R. Crim. P. 32(c) (3) (D) more precisely. When a district court confronts a challenge to the accuracy of information in a presentence report, it should explicitly state for the record either its finding regarding the challenge, or its decision not to take the matter controverted into account when imposing sentence. By adhering to this modest requirement, the district courts can help reduce unnecessary appeals based on the parties' misunderstanding of the record.
Ibarra, 737 F.2d at 827-28 (footnote omitted) (emphasis added). In addition to preventing unnecessary appeals, complying precisely with the rule's mandate promotes justice and the appearance of justice.
Appellant contends that the district court failed to append its findings and determinations to the presentence report. We find nothing in the record to refute appellant's argument.
Under Rule 32(c) (3) (D), attaching findings to the presentence report is mandatory. United States v. Petitto, 767 F.2d 607, 609 (9th Cir. 1985). The main purpose of the rule is "to ensure that the presentence report used by the Bureau of Prisons and the Parole Board be as accurate as possible." Id. at 610. The possibility that prison or parole officials may later rely on false allegations is "precisely what [the rule] seeks to prevent." Id. Thus, we have held that a failure to comply with this dictate of Rule 32(c) (3) (D) must result in remand to give the district court an opportunity to comply. Id. Such is the appropriate remedy here. "The written record requirement may be fulfilled either by making written findings and attaching them to the presentence report, or by making explicit or (sic) oral findings and ordering a copy of the transcript thereof to be attached to the presentence report." Id. Courts ordinarily require resentencing when the rule is violated. We do not find that necessary here. The record before us is adequate to substantiate the fact that the court did not rely on the disputed portions of the presentence report in sentencing. The record that goes forward to the prison, however, must also be complete.
Appellant's final contention is that the disparity between his sentence and that imposed on Johnson gives rise to an appearance of unfairness that warrants resentencing.
It is within the discretion of the sentencing court to impose disparate sentences on co-defendants. Chiago, 699 F.2d at 1014. A disparity in sentences does not alone indicate an abuse of discretion or the need for review. United States v. Garrett, 680 F.2d 650, 652 (9th Cir. 1982). Only if the more severe sanction may have been imposed because the defendant receiving it exercised his right to trial will we require an explanation. Id.
There are more than ample reasons in the record for the disparity. The most important of these is the number and seriousness of Sterling's prior convictions. Johnson, by contrast, had only two prior convictions--one for larceny, the other for misdemeanor assault. On these facts, the disparate sentences were justified.
CONCLUSION
We affirm the sentence imposed, but caution district courts that precision in their articulation of findings on controverted factual statements in presentencing reports is essential. We remand with instructions to the court to attach written findings to the presentence report and to forward the report with attachment to the Bureau of Prisons.
AFFIRMED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3
Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation
"If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report of part thereof, 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. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission." Fed. R. Crim. P. 32(c) (3) (D)
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