U.S. v. Gutierrez-Hernandez, GUTIERREZ-HERNANDEZ

• Decision Date: 28 August 1996
• Docket Number: 95-10195,Nos. 95-10188,GUTIERREZ-HERNANDEZ,s. 95-10188
• Citation: 94 F.3d 582
• Parties: 96 Cal. Daily Op. Serv. 6414, 96 Daily Journal D.A.R. 10,541 UNITED STATES of America, Plaintiff-Appellee, v. Jose, and Raul Suarez-Reynoso, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 582

94 F.3d 582

96 Cal. Daily Op. Serv. 6414, 96 Daily Journal

D.A.R. 10,541

UNITED STATES of America, Plaintiff-Appellee, v. Jose GUTIERREZ-HERNANDEZ, and Raul Suarez-Reynoso Defendants-Appellants.

Nos. 95-10188, 95-10195.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 17, 1996.

Decided Aug. 28, 1996.

John F. Garland, Fresno, California, for defendant-appellant Jose Gutierrez-Hernandez.

Mark C. Ament, Assistant Federal Defender, Fresno, California, for defendant-appellant Raul Suarez-Reynoso.

William S. Wong, Assistant United States Attorney, Sacramento, California, for plaintiff-appellee.

Appeals from the United States District Court for the Eastern District of California, Myron D. Crocker, District Judge, Presiding. D.C. No. CR-94-05006 MDC.

Before: PREGERSON and TROTT, Circuit Judges, EZRA, District Judge. ^*

EZRA, District Judge:

Appellants contend that their respective sentences should be vacated because the district court failed to make the necessary factual findings at sentencing as to the amount of drugs implicated in a drug conspiracy. Raul Suarez-Reynoso ("Reynoso") further disputes his sentence on grounds that the district court failed to make specific factual findings as to (a) the amount of drugs involved in the conspiracy that were specifically attributable to him, and (b) his role in the offense. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 18 U.S.C. § 3742. We AFFIRM IN PART, and VACATE AND REMAND IN PART.

I.

The district court's factual findings in the sentencing phase are reviewed for clear error. See United States v. Fuentes-Mendoza, 56 F.3d 1113, 1116-17 (9th Cir.1995) (quantity of drugs, possession of firearm, supervisorial role), cert. denied, --- U.S. ----, 116 S.Ct. 326, 133 L.Ed.2d 227 (1995).

The district court's interpretation of the Sentencing Guidelines is reviewed de novo. United States v. Basinger, 60 F.3d 1400, 1409 (9th Cir.1995). The district court's application of the Sentencing Guidelines to the facts is reviewed for an abuse of discretion. Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996). The district court's interpretation of the Guidelines, as a matter of law, is not entitled to deference, though "[l]ittle turns ... on whether we label review of this particular question abuse of discretion or de novo, for ... [a] district court by definition abuses its discretion when it makes an error of law." United States v. Willett, 90 F.3d 404, 406 (9th Cir.1996) (quoting Koon, --- U.S. at ----, 116 S.Ct. at 2047).

II.

Acting on a tip from a confidential informant, state and local officers raided a clandestine methamphetamine laboratory operating in rural Fresno County, California. Appellants were arrested fleeing the scene.

On January 13, 1994, a grand jury indicted Appellants Jose Gutierrez-Hernandez ("Hernandez") and Reynoso (collectively "Appellants") ¹ on two counts: (1) conspiracy to manufacture methamphetamine, and (2) manufacturing and aiding and abetting the manufacture of methamphetamine. After three days of trial, on November 10, 1994, the jury found Appellants guilty of both counts.

Appellants made several objections to their respective Presentence Reports disputing the probation office's findings as to the amount of drugs involved, the amount of drugs attributable to Reynoso, and Reynoso's role in the underlying offense. On April 10 and 24, 1995, the district court conducted an evidentiary hearing to address the objections. At the conclusion of the second day of testimony, Hernandez and Reynoso were each sentenced to 235 months in custody, 50 months of supervised release, and other terms and conditions. The Appellants have appealed their respective sentences based on what they believe to be insufficient factual findings on the controverted matters at sentencing.

III.

Rule 32(c)(1) of the Federal Rules of Criminal Procedure provides in relevant part:

At the sentencing hearing, the court must ... rule on any unresolved objections to the presentence report.... For each matter controverted, the court must make either a finding on the allegation or a determination that no such finding is necessary because the controverted matter will not be taken into account in or will not affect sentencing. A written record of these findings and determinations must be appended to any copy of the presentence report made available to the Bureau of Prisons.

Fed.R.Crim.P. 32(c)(1) (West 1995).

"When a defendant challenges information contained in his presentence investigation report, the district court must make [written] findings of fact concerning any disputed matter which it relies upon in sentencing." United States v. Turner, 898 F.2d 705, 709 (9th Cir.), cert. denied, 495 U.S. 962, 110 S.Ct. 2574, 109 L.Ed.2d 756 (1990).

The Ninth Circuit has consistently held that "[i]f the district court fails to make the required [Rule 32] findings or determinations [at the time of sentencing], the sentence must be vacated and the defendant resentenced." United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc). Equally clear, however, is that a technical violation of Rule 32 is a ministerial error that does not require resentencing. Id. at 1517; United States v. Castaneda, 16 F.3d 1504, 1513 (9th Cir.1994). Technical errors can be corrected by ordering the district court to append to the presentence report the required findings and determinations. Fernandez-Angulo, 897 F.2d at 1517.

Here, Appellants objected to the amount of drugs specified in their presentence reports. In response to those objections, the district court conducted an evidentiary hearing on the controverted issues. A review of the record and the district court's comments clearly establish that the district court adopted the Government's position that there were more than three kilograms of actual methamphetamine involved, to justify a base offense level of 38 for sentencing purposes. We find the district court's statements on the record sufficient to meet the substantive requirements of Rule 32. See Castaneda, 16 F.3d at 1513. While the district court failed to append its factual findings to the presentence report as required by Rule 32, under the circumstances here, we find that it is merely a technical violation that does not merit a vacation of the sentence. Thus, while we AFFIRM Hernandez's sentence, we REMAND the case to the district court with instructions to append its factual findings to the presentence report and to forward a copy of the revised report to the Bureau of Prisons so as to remedy the technical violation of Rule 32.

IV.

As to his particular sentence, Reynoso also argues separately for remand on grounds that the district court failed to make a specific factual finding as to the amount of drugs specifically attributable to him.

The district court may only sentence a defendant for relevant conduct within the scope of the defendant's agreement that was reasonably foreseeable in connection with the criminal activity the defendant agreed to undertake jointly. U.S.S.G. § 1B1.3, Application Note 1 (as amended November 1, 1990); United States v. Navarro, ...