Unpublished Disposition, 940 F.2d 670 (9th Cir. 1991)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.Joseph Michael STARCZEWSKI, a/k/a Joseph Michael Starr,Defendant-Appellant.
No. 90-50552.
United States Court of Appeals, Ninth Circuit.
Submitted July 23, 1991.* Decided July 25, 1991.
Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.
MEMORANDUM**
Joseph Michael Starczewski appeals his conviction and sentence following entry of a guilty plea to aiding and abetting wire fraud, in violation of 18 U.S.C. §§ 2 and 1343. Starczewski contends the district court erred by failing to establish a sufficient factual basis to accept his guilty plea as required by Fed. R. Crim. P. 11(f). In addition, Starczewski contends the district court erred by failing to resolve disputed factual matters or state on the record that those factual matters would not be considered in sentencing, as required by Fed. R. Crim. P. 32(c) (3) (D). We have jurisdiction under 28 U.S.C. § 1291 and we affirm with instructions to the district court to ensure a copy of the sentencing transcript be appended to the presentence report.
* Fed. R. Crim. P. 11(f)
Starczewski argues the district court failed to establish the existence of each of the elements of wire fraud during the plea entry colloquy and that this failure renders the plea entry invalid. The sufficiency of the factual basis underlying a guilty plea is reviewed de novo. United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983) (applying same test as district court was required to apply), cert. denied, 467 U.S. 1215 (1984).
Rule 11(f) requires the district court to inquire into the factual basis for a guilty plea to determine the accuracy of the plea.1 Id. While no specific method is prescribed, "it must be established on the record that there is sufficient evidence to support the conclusion that the defendant is guilty." Id. The elements of wire fraud are (1) using or causing the use of a telephone in interstate commerce, (2) in furtherance of a scheme to defraud, (3) with the intent to defraud.2 United States v. Bonanno, 852 F.2d 434, 440 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989).
Here, the colloquy between Starczewski and the district court clearly established each of the elements of wire fraud.3 Starczewski knew that his employee made the phone call referred to in the count of conviction with the intent to solicit money which would be utilized for purposes other than that which was originally represented. See Bonanno, 852 F.2d at 441. Therefore, the district court did not err by accepting Starczewski's guilty plea without eliciting the factual basis required by Rule 11(f). See Rivera-Ramirez, 715 F.2d at 458.
II
Fed. R. Crim. P. 32(c) (3) (D)
Starczewski contends the district court acknowledged the existence of factual disputes regarding the accuracy of the presentence report (PSR) but failed to address the controverted matters at sentencing.
" [W]hen the defendant challenges the factual accuracy of any matters contained in the presentence report, the district court must, at the time of sentencing, make the findings or determinations required by Rule 32." United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc) (sentence vacated for failure to comply with Rule 32).4 Failure to comply with the requirements of Rule 32 requires vacation of the sentence and resentencing. Id. "If the district court states that the controverted matters will not be considered in imposing sentence, the sentencing record must unambiguously reflect that the district court placed no reliance on the controverted matters. If the record is ambiguous in this regard, the sentence must be vacated and remanded for resentencing." Id., at 1516 n. 2; see also United States v. Baron, 860 F.2d 911, 919-20 (9th Cir. 1988) (remand for resentencing required when court stated it would not rely on information and later created ambiguity about whether it did rely on that information at sentencing), cert. denied, 490 U.S. 1040 (1989).
Here, Starczewski filed a motion to correct alleged factual inaccuracies in the PSR. At the sentencing hearing, the government disputed Starczewski's claims regarding the existence of an account which acted as a hedge against customers' investments, but conceded Starczewski was correct in that he was not involved with the other entities through which the fraud was carried out and that the amount of money taken in by Cromex was over reported in the PSR. The district court specifically found that the PSR statement of facts as modified by the government at the sentencing hearing were the accurate facts to be relied upon in making its sentencing decision.5 Therefore, the district court made the findings required by Rule 32(c) (3) (D) as to the controverted facts in the PSR. See Fed. R. Crim. P. 32(c) (3) (D); cf. Fernandez-Angulo, 897 F.2d at 1516.
We also direct the district court to ensure that a copy of the sentencing hearing transcript be appended to the PSR.
AFFIRMED WITH INSTRUCTIONS.
The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
Rule 11(f) provides:
Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
Fed. R. Crim. P. 11(f) (West 1990).
The wire fraud statute provides in relevant part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire ... communication in interstate ... commerce, any ... sounds for the purpose of executing such scheme or artifice ... shall be fined ... or imprisoned.
18 U.S.C. § 1343 (West 1990).
The following interchange occurred between the district court, defense counsel McCutcheon, and Starczewski at the plea entry hearing:
THE COURT: All right; and [Starczewski] knew that the solicitation by phone involved a scheme to defraud, where money would be utilized for purposes other than that which originally were represented. Is that true?
McCUTCHEON: I think there was an error of omission, in that it was not represented or disclosed that these funds would be commingled. In fact, they were ... used for other purposes.
THE COURT: If he is just negligent, I am not going to take his plea to anything. You will have to let me know that they knew they were obtaining money and they knew they were going to divert it.
McCUTCHEON: There is no question of that. They knew that the money was coming. They did receive money, and money was diverted.
THE COURT: That was the original intent.
McCUTCHEON: I think the intent was to obtain the money.
THE COURT: And divert it?
STARCZEWSKI: Yes, sir.
THE COURT: Is what your lawyer said true in all respects, sir?
STARCZEWSKI: Yes, sir.
(RT 2/12/90 at pp. 9-10).
Rule 32 provides in relevant 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.
Fed. R. Crim. P. 32(c) (3) (D) (West 1990).
The district court directly addressed Starczewski's objections, stating:
[A]s to your motion to correct various inequities, I agree with Mr. Ferraro [, the government's attorney]. I am going to deny your motion in that regard. I think the probation report is pretty straightforward. I understand the distinctions you are making, [defense counsel], but I think Mr. [Starczewski's] own conduct--I don't mean to oversimplify it, but Mr. [Starczewski] has been living by his wits, and I think this reflects it quite traumatically in the [PSR]. I think their recommendation is reasonable and appropriate. I intend to follow it.
Mr. [Starczewski], you knew, very precisely that there is no free lunch with a scheme like this. There was no way those people were ever going to come out of it [alright]; and today is the day we pay the piper; so, having said that, I accept the evaluation of the probation office and also the U.S. Attorney's position as just stated by Mr. Ferraro; and I would, therefore, follow the recommendation of the Probation Office.
(RT 9/10/90 at 25).
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