Unpublished Disposition, 912 F.2d 470 (9th Cir. 1990)

MEMORANDUM^** 

Jerry Lynn Dry appeals his sentence of 376 months on one count of kidnapping Marcelle Fisk and transporting her from Washington to Oregon, in violation of 18 U.S.C. 1201(a) (1).¹ 

Dry forced Fisk, his 19-year-old neighbor, into his station wagon. She struggled and attempted to escape, but he handcuffed her. Dry directed his wife to place Fisk's infant daughter into the vehicle. With both Fisk and the child in his vehicle, Dry drove from Washington to Oregon. Passing truck drivers reported seeing a vehicle containing an infant and a tied up woman who was struggling with the driver. An Oregon state trooper spotted the vehicle, and saw that Fisk was weeping, yelling for help, and had her hands bound. The trooper stopped the vehicle and Fisk ran out carrying her child. Fisk attributed bruises on herself and the child to rough handling and assaults by Dry. Dry showed the trooper a falsified arrest warrant for Fisk and said that he was transporting her to California. A rifle was found in the rear of the station wagon.

Pursuant to a plea agreement, Dry pled guilty to kidnapping Fisk, and the district court dismissed a second count for kidnapping Fisk's child. The presentence report recommended an offense level of 34 with a guideline range of 188-235 months. The report further noted that " [t]he Court could consider an upward departure as the guidelines underrepresents [sic] the seriousness of the conduct. A 17-month-old [sic] baby plus the baby's 19-year-old mother were kidnapped and physically assaulted".

At the sentencing hearing, defense counsel objected to several facts and sentence enhancement factors in the presentence report. The government then argued for an upward departure from the guidelines. The district court refused defense counsel's request to respond to the government's arguments for an upward departure, and then departed upward to offense level 41, and imposed a sentence of 376 months. The district court found that the guidelines underrepresented the severity of Dry's offense, "kidnapping two individuals and physically assaulting both," with aggravated factors being premeditation and the young ages of the two victims. Dry appeals his sentence. We vacate his sentence and remand for resentencing.

a. Findings on Disputed Facts

Dry contends that the district court failed to make findings with regard to disputed facts and sentencing factors. Federal Rule of Criminal Procedure 32(c) (3) (D) provides that if the defense alleges

"any factual inaccuracy in the presentence investigation report or the summary of the report or 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."

The government contends that the district court made the "functional equivalent of findings" by accepting the presentence report calculation of the guideline range. In United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990), neither the guidelines nor Rule 32 were violated when the district court found "that the probation report and addendum correctly computes the guideline range...." In Rigby, the defendant filed written objections to the presentence report, the probation officer responded to those objections in an addendum, both the government and the defendant argued the disputed issues at the sentencing hearing, and then the district court expressly adopted the reasoning of the presentence report and addendum. Here, the district court merely acknowledged the report by saying, " [i]f I understand it, the Probation Service has recommended a guideline of 34, level of 34, with no downward adjustments." Unlike the presentence report in Rigby, here the presentence report does not respond to any of Dry's objections. Nor does the report provide reasons for several of the disputed sentencing factors. For example, the report adds two levels for a vulnerable victim without explaining the basis of the victim's vulnerability. We conclude that the district court did not make findings by adopting the reasoning of the presentence report.

While the defense counsel presented his objections to the report, the district court made several comments such as "anything else," and asked pointed questions.²  Such comments and questions do not amount to findings of disputed facts. See United States v. Rico, 895 F.2d 602, 603 (9th Cir. 1990) (sentence vacated when district court merely stated "all right" or "noted" after defense counsel objected to portions of the presentence report). The district court made some findings in support of an upward departure from the guidelines, but those findings do not resolve all of the disputes.³  From this record, we are unable to determine whether the court considered all of Dry's objections to the presentence report. See United States v. Carlisle, No. 89-30097, slip op. 6527, 6531-32 (9th Cir. June 28, 1990).

The government also contends that no findings were necessary because the defendant did not allege factual inaccuracies, but argued about the application of the guidelines to facts. We disagree. Defense counsel objected to facts in the presentence report, such as whether Dry possessed a squirt gun or assaulted the child. Additionally, defense counsel objected to several sentencing factors in the report that are essentially factual determinations. For example, the defendant agreed with the presentence report description of Fisk's bruises, but contended that no evidence showed that Fisk had the "extreme physical pain or ... impairment ... or medical intervention" required for a Sec. 2A4.1(b) sentence enhancement. See Sentencing Guidelines Sec. 1B1.1, note 1(i). The presentence report determination that Fisk sustained a "serious bodily injury," is essentially a factual determination, and the defendant clearly questioned it. See United States v. Carvajal, No. 89-10184, slip op. 6041, 6048 (9th Cir. June 12, 1990) (whether the defendant was a leader of a cocaine transaction for the application of Sec. 3B1.1 is an "essentially factual determination" reviewed for clear error); United States v. Gonzales, 897 F.2d 1018, 1019 (9th Cir. 1990) (whether the defendant has accepted responsibility is a factual determination reviewed for clear error).

Because we conclude that defense counsel alleged several factual inaccuracies in the presentence report and the district court did not make the required Rule 32 findings, we must reverse and remand for resentencing. United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 (9th Cir. 1990).

The district court judgment order lists the following reasons for departure from the guidelines.

[T]he [guidelines] sentence range ... does not adequately reflect, and thereby understates, the overall seriousness of the defendant's criminal conduct, as evidenced by the fact that two victims were kidnapped, the victims were of young ages, particularly the fourteen-month old child, and were therefore particularly vulnerable, and the substantially premeditated nature of this offense....

At the sentencing, the district court also listed the assault on two individuals as a reason for departure.⁴ 

The defendant contends that all of the listed factors were considered by the Sentencing Commission, except for the disputed kidnapping and assault of the child. The guidelines consider whether the victim is "vulnerable due to age", Sec. 3A1.1, or sustained "serious bodily injury," Sec. 2A4.1. The district court did not explain how Fisk's vulnerability or assault during the offense were "circumstance [s] of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission...." 18 U.S.C. § 3553(b); see also Sentencing Guidelines Sec. 5K2.0 ("physical injury would not warrant departure from the guidelines when the offense of conviction ... includes a specific sentence adjustment based on the extent of any injury.") However, the youth, vulnerability, and assault of a second victim may warrant departure. See Sentencing Guidelines Sec. 5K2.0 ("because the ... guideline does not deal with injury to more than one victim, departure would be warranted if several persons were injured.") We must reverse when the district court's statement of reasons contains both proper and improper reasons for departure. See United States v. Nuno-Para, 877 F.2d 1409, 1413-14 (9th Cir. 1989).

The government argued for an upward departure based on at least one factor, premeditation, not mentioned in the presentence report as a reason for an upward departure. Under those circumstances, the district court erred in refusing defense counsel's request to respond to the government's argument for an upward departure. See United States v. Hedberg, 902 F.2d 1427, 1429 (9th Cir. 1990) (sentence vacated when the district court upwardly departed without giving the defendant notice and an opportunity to assert a defense); see also Nuno-Para, 877 F.2d at 1415 (" [T]he court must advise the defendant that it is considering departure based on a particular factor and allow defense counsel an opportunity to comment.")

We vacate the sentence and remand for resentencing because the district court failed to make findings or determine to disregard disputed facts in the presentence report. We also reverse because of the district court's stated improper grounds for departure from the guidelines.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.