Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

MEMORANDUM^* 

Appellant was indicted for bank robbery in violation of 18 U.S.C. § 2113(a). Pursuant to a plea agreement, he pled guilty to an information charging what was referred to as "bank larceny" in violation of 18 U.S.C. § 2113(c). He was sentenced to ten years imprisonment, and was not to be eligible for parole until one-third of the sentence had been served.

Prior to sentencing, appellant challenged a statement in the presentence report that his offense was classified as "category 5" rather than "category 1." Appellant regarded this alleged misclassification as indicating appellant's offense was that of "bank robbery" rather than "bank larceny." During the sentencing hearing the judge commented that the bank teller had been "intimidated and threatened," and suggested that the seriousness of the appellant's mental illness was doubtful. Based on these comments appellant reiterated his concern that he was being sentenced for "bank robbery" (which included the element of intimidation and a more demanding mental requirement) rather than for "bank larceny." Appellant asked the court to make an appropriate finding to clarify the matter. The court stated it was willing to do so since, "I sentenced him under bank larceny. Right. At all times I considered that." Appellant responded, " [I]t would be appropriate that the Court find that the Bureau of Prisons should not be considering it as more than that. I think that's appropriate given the fact that there is the mental responsibility defense on the greater charge." The court asked appellant to "submit in a letter exactly what the finding [is] you want me to make." Nevertheless the court entered judgment later that day, before appellant had submitted the proposed finding. Appellant then appealed.

Sometime later appellant submitted his proposed findings and moved the district court to authorize him to apply to the court of appeals for a limited remand so the district court might consider them. The government advised the court that appellant's proposed findings "are correct," but objected to their phrasing. The district court denied the motion for leave to seek a remand.

Even if the judge's statement that "I sentenced him under bank larceny" made it entirely clear that the judge did not consider the facts appellant asserts were controverted, the court failed to attach to the presentence report a determination that it had not considered these matters and therefore no findings were necessary, as required by Fed. R. Crim. P. 32(c) (3) (D). Remand is therefore required. United States v. Edwards, 800 F.2d 878, 881 (9th Cir. 1986); United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986); United States v. Petitto, 767 F.2d 607, 610 (9th Cir. 1985).

Moreover, since the Court requested appellant to submit proposed findings, the court must have thought appellant may have raised factual inaccuracies or ambiguities in the presentence report that required findings to resolve them. If so, it was error to formalize the sentence in a judgment before appellant could submit his proposed findings and the court could act upon them. "Rule 32(c) (3) (D) clearly contemplates that the determinations regarding disputed factual material will be made prior to sentencing." Edwards, 800 F.2d at 883 (emphasis added).

Remand will remove the jurisdictional bar to the district court's consideration of appellant's proposed findings.

VACATED and REMANDED.