852 F.2d 1290: Unpublished Disposition

- 852 F.2d 1290


Before SKOPIL, SCHROEDER and ALARCON, Circuit Judges.

1

AMENDED MEMORANDUM**

2

Stanley Forbes Jacox III appeals after pleading guilty to possession with intent to distribute methaqualone, conspiracy to manufacture methamphetamine, manufacture of methamphetamine, and tax evasion. Jacox contends that his presentence report contained incorrect information and that the district court failed to treat this information in compliance with Fed.R.Crim.P. 32(c)(3)(D).

3

At Jacox's sentencing proceedings, Chief Judge Karlton acknowledged the existence of disputed facts in the presentence report. Judge Karlton stated: "My opinion is that I am not going to rely upon the matters that are contested in [Jacox's] letter. I am not going to do so because it doesn't make any difference to me given what [Jacox] freely admits to." Judge Karlton later added that he was not considering the disputed matters in sentencing Jacox. Judge Karlton ordered that Jacox's letter containing the objection to the presentence report "be attached to the probation report to be forwarded to the Bureau of Prisons, and that the report specifically note that the court has not resolved those factual issues." The court's determination that it would not consider the controverted matters in sentencing Jacox was not attached to the presentence report.

4

When a defendant challenges information in the presentence report, the district court must meet two requirements imposed by Fed.R.Crim.P. 32(c)(3)(D). United States v. Edwards, 800 F.2d 878, 881 (9th Cir.1986). First, the court must either make written findings as to the controverted information, or state that such findings are unnecessary because the court will not rely on the disputed information when sentencing the defendant. Fed.R.Crim.P. 32(c)(3)(D); Edwards, 800 F.2d at 881. Second, the court must append to the presentence report a written copy of its determination regarding the disputed information. Fed.R.Crim.P. 32(c)(3)(D); Edwards, 800 F.2d at 881. Strict compliance with Rule 32(c)(3)(D) is required, and failure to comply results in remand. Edwards, 800 F.2d at 881.

5

The district court did not strictly comply with the provision of Rule 32 requiring the court to attach its findings to the presentence report. The court ordered that Jacox's letter containing the objections to the presentence report "be attached to the probation report to be forwarded to the Bureau of Prisons, and that the report specifically note that the court had not resolved those factual issues." While Jacox's factual contentions were attached, as well as a statement that the court has not resolved the disputed information, the court did not attach its determination that it did not rely on the disputed information in sentencing Jacox. The written record provision of Rule 32 was intended to ensure that a record "as to exactly what resolution occurred as to the controverted matter ... comes to the attention of the Bureau [of Prisons] or [Parole] Commission when these agencies utilize the presentence investigation report." Fed.R.Crim.P. 32(c)(3)(D) advisory committee's note.

6

The judgment is REMANDED for the sole purpose of requiring the court to attach to the presentence report its determination that it did not rely on the contested information in sentencing Jacox.