Unpublished Disposition, 855 F.2d 863 (9th Cir. 1988)

No. 86-1303.

United States Court of Appeals, Ninth Circuit.

Before SKOPIL and REINHARDT,^*  Circuit Judges, and JAMES M. BURNS,^**  District Judge.

MEMORANDUM^*** 

Carlos Ondarza pleaded guilty to charges of possessing methamphetamine with intent to distribute and possessing an unregistered firearm. On appeal he contends the sentencing judge violated Fed. R. Crim. P. 32(c) (3) (D) by failing either to resolve alleged factual errors in the presentence report or indicate that he would disregard the controverted matter. We agree with Ondarza and remand for resentencing.

DISCUSSION

Rule 32 provides that prior to sentencing a defendant and defense counsel shall be given the opportunity to review and comment on the presentence report. See United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984). If factual inaccuracies are alleged, the court is obligated either to make findings resolving the matters or determinations on the record that the controverted matters will not be taken into account in sentencing the defendant. United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984). In either case, the obligation can be fulfilled by making written findings or determinations and attaching them to the presentence report, or by making oral findings or determinations and attaching a copy of the transcript to the presentence report. See United States v. Petitto, 767 F.2d 607, 610 (9th Cir. 1985).

Ondarza's attorney acknowledged that the presentence report as a whole was fair but noted that there were inaccuracies. Critical to this appeal is the following dialogue:

[COUNSEL]: [I] [a]lso ask the Court not to take into consideration paragraph two on page two, because I believe there is some inaccuracies and doesn't relate to the counts that he entered his plea to. I would ask the Court to disregard that paragraph.

THE COURT: Anything else.

[COUNSEL]: No, Your Honor. Submitted.

The court then sentenced Ondarza to three years incarceration plus a fine.

Generally, we insist upon strict compliance with the procedural mandates of Rule 32. See United States v. Edwards, 800 F.2d 878, 881 (9th Cir. 1986) ("Strict compliance with Rule 32(c) (3) (D) is required, and failure to comply will result in remand."); Petitto, 767 F.2d at 610 (failure to comply strictly requires remand); Travis, 735 F.2d at 1132-33 (remand for resentencing when the district court did not specifically indicate that it was not considering controverted facts). Only once have we accepted less than strict compliance with the rule. See Ibarra, 737 F.2d at 827. But even there we held that the sentencing judge had substantially complied by making it clear, though not in so many words, that he was not relying on certain contested matters. Id.

Here Ondarza's attorney stated there were inaccuracies in a particular paragraph of the report and requested the court not to consider the paragraph in imposing a sentence. In response, the judge neither made factual findings concerning the material in the contested paragraph nor indicated that he would disregard the contested paragraph in sentencing. As a result, we are unable to discern on appeal whether the contested paragraph was considered in sentencing. Hence we conclude that there was neither strict nor substantial compliance with Rule 32(c) (3) (D).

The government maintains, however, that Rule 32(c) (3) (D) does not apply here because the defendant's counsel did not adequately specify the alleged factual inaccuracies. We disagree. Ondarza's attorney adequately notified the court that a particular paragraph in the presentence report contained factual inaccuracies. More importantly, he specifically invoked the provisions of the rule by requesting that the paragraph be disregarded in sentencing. The rule's dual purpose is to eliminate factual inaccuracies from the presentence report and to facilitate the appellate process by creating a clear record of the manner in which factual disputes are resolved. Petitto, 767 F.2d at 610. To say that Rule 32 is inapplicable here because the defendant did not adequately specify which facts he contested, even though the judge had been notified that a particular paragraph contained alleged inaccuracies and asked not to consider that paragraph in imposing a sentence, would be at odds with the underlying purposes of the rule.

We VACATE Ondarza's sentence and REMAND for resentencing.

JAMES M. BURNS, District Judge, concurring

I concur in the result but only with extreme reluctance. I believe earlier precedents of this Circuit give us no choice.