Unpublished Disposition, 914 F.2d 1497 (9th Cir. 1990)

ORDER

Ricky Riley appeals his thirty-month sentence imposed pursuant to the Sentencing Guidelines following a bargained guilty plea to one count of making a false statement in the acquisition of a firearm, in violation of 18 U.S.C. § 922(a) (6). We have jurisdiction pursuant to 18 U.S.C. § 1291 (1988). Because the district court improperly departed from the Guidelines range and failed to resolve factual disputes relevant to sentencing, we vacate Riley's sentence and remand for resentencing.

Riley first contends, without dispute by the government, that the district court's sentence must be vacated and remanded because the district court departed from the Guidelines range without providing him prior notice of its intention to depart. As demonstrated clearly by the law of this Circuit, Riley's contention is correct. This Court has consistently held that a defendant must be given notice of a departure and a meaningful opportunity to address the issue prior to the imposition of a sentence. See, e.g., United States v. Hedberg, No. 89-30114, slip op. at 4519 (9th Cir. May 9, 1990); United States v. Nuno-Para, 877 F.2d 1409, 1415 (9th Cir. 1989); United States v. Acosta, 895 F.2d 597, 600 (9th Cir. 1990). As the record in Riley's case demonstrates, such notice and opportunity to respond on the issue of departure from the Guidelines range was notably lacking.

Riley also contends, again with the government's concurrence, that the sentence must be vacated because the district court failed to resolve at the time of sentencing factual disputes raised in the presentence report. Fed. R. Crim. P. 32(c) (3) (D) provides, in pertinent part:

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 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.

This Circuit has stated that " [s]trict compliance with the Rule is required." United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc) . In the instant case, Riley objected to the probation officer's inclusion of two points in his criminal history score for commission of the offense while on probation. According to Riley, he was not on probation on the date of the offense's commission. The district court failed to resolve this disputed issue before sentencing Riley. Accordingly, remand and resentencing is warranted on this ground, as well. Id.

Finally, remand is appropriate to allow the district court to properly articulate its grounds for departing from the Guidelines range. At sentencing, the district judge stated that he intended to depart upward "because I don't think that the defendant has been totally candid with me." (E.R. 13). He stated no other ground for the upward departure. As it is not clear in what respect the district judge found defendant not to be candid, and whether other factors entered into his decision to sentence Riley above the Guidelines range, resentencing of defendant is required. See United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989).

Riley also argues that the district court should be directed, on remand, to resentence defendant within the Guidelines range. This we decline to do. Although the district judge did not clearly articulate any rationale that would justify departure from the Guidelines range at Riley's sentencing, we cannot say that no such rationale could be articulated. If, on remand, after hearing the parties on the issue of departure, the district judge resentences Riley above the Guidelines range, Riley can again appeal his sentence. At that time, the propriety of departure in Riley's case could better be reviewed on the basis of the rationale articulated by the district judge.

We VACATE Riley's sentence and REMAND for resentencing.