Kramer v. U.S., 85-2803

• Decision Date: 15 May 1986
• Docket Number: No. 85-2803,85-2803
• Citation: 788 F.2d 1229
• Parties: Arnold I. KRAMER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1229

788 F.2d 1229

Arnold I. KRAMER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 85-2803.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 1986.

Decided April 15, 1986.

Rehearing Denied May 15, 1986.

Julius Lucius Echeles, Chicago, Ill., for petitioner-appellant.

Stephen L. Heinze, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, Chief Judge, and FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

This is the third opinion of this circuit in three months dealing with Fed.R.Crim.P. 32(c)(3)(D), which provides that when a defendant alleges inaccuracies in his or her presentence report the sentencing judge is required to make written findings as to the allegations, or a written determination that the disputed matters will not be relied upon for sentencing, and must attach those findings or that determination to the presentence report. See, United States v. Hamm, 786 F.2d 804 (7th Cir.1986); United States v. Eschweiler, 782 F.2d 1385 (7th Cir.1986). As was done in those two cases, we remand for a speedy and full compliance with Rule 32(c)(3)(D).

I.

In December, 1983 the district court found Arnold Kramer guilty of four counts of willfully failing to file timely income tax returns and one count of filing a false document with the Internal Revenue Service. Kramer was sentenced to four consecutive one-year terms, five years probation, and a ten-thousand dollar fine. The district judge explained the basis of Kramer's sentence in some detail:

Now, let me give the reasons why I am imposing this sentence. I am imposing this sentence because it is clear to me that Mr. Kramer throughout the time involved in this investigation of him by the Internal Revenue Service agents--and I say this from the evidence I heard and I also say it from my observation of Mr. Kramer--Mr. Kramer has always had his way about things throughout his life. The presentence report shows that. Mr. Kramer believed that he could do this with the United States government and get away with it. Exactly how Mr. Kramer has been able to do this, I do not know, because I do not claim to be an expert in tax matters. But the presentence report can be submitted to any tax consultant or specialist. It amounts almost to a bizarre fact that a lawyer can have a gross income in 1976 of $109,360, $132,933.09; in 1977, $353,980.48; and in 1979, $132,008.66. Yet, he is able to stand here and say, without apparent fear of contradiction, that he does not owe any tax, never owed any and thus he is not to be found guilty of the charges made against him in this indictment.

Kramer disputes that he owes $329,000 in taxes (a figure alleged to be owed by the I.R.S.) and no evidence was submitted at trial about any monies owed. Later, in an unpublished order this circuit affirmed Kramer's convictions and held that while Kramer claimed his sentence was disproportionately severe and based on improper considerations, the court would not disturb the sentence without a plain showing of gross abuse. Kramer did not at that time allege a violation of 32(c)(3)(D).

Kramer then attacked the sentence in district court with two separate motions pursuant to 28 U.S.C. Sec. 2255 and Rule 35(a). The habeas petition under 28 U.S.C. Sec. 2255 was dismissed and one week later the Rule 35(a) motion was denied. The dismissal of the Section 2255 petition was based on the district court's perception that Kramer failed to raise the Rule 32(c)(3)(D) issue on direct appeal, while the denial of the Rule 35(a) motion was based on the district court's perception that Kramer's controversy could not be reasonably and properly litigated in the context of the sentencing proceedings.

Both the Section 2255 petition and the Rule 35(a) motion asserted that not only the length of Kramer's sentence but also the length of his actual incarceration were based upon an improper consideration of his disputed tax liability. Kramer claims that because his presentence report states that he owes over $320,000 in taxes, he has been placed in Category 5 of the Parole Board Guidelines. Someone placed in Category 5 must serve a sentence of 24 to 36 months of a four-year sentence. But for the presence of the disputed amount in the presentence report, Kramer might be placed in Category 1, which according to the Parole Board Guidelines means that Kramer need serve as little as six months. At the time of this appeal, the defendant has already served more than one year.

II.

There is no dispute in this case that Rule 32(c)(3)(D) was not followed. The district court did not make either a written finding that was attached to the presentence report regarding the disputed amount of taxes the defendant owed or hold a hearing to determine how much taxes the defendant actually did owe. As with many changes in rules it takes time for the bench and bar to adjust and to determine with any certainty how the changes are to be administered in practice. Therefore, we quote again the language of Eschweiler, that was quoted in Hamm, to assist the bar and bench:

[United States v. Rone, 743 F.2d 1169 (7th Cir.1984) ] requires that the sentencing judge ask the defendant three questions in order to comply with Rule 32: (1) whether the defendant has had an opportunity to read the report; (2) whether the defendant and defense counsel have discussed it; and (3) whether he or she wishes to challenge any facts in the report. Id. at 1174. This questioning process establishes a record reflecting that the defendant has had a realistic opportunity to read, discuss, and object to the report.

If the defendant disputes a fact in the report, the requirements of subsection (D) are triggered. Rone, 743 F.2d at 1175. The sentencing judge is then obligated either to make written findings concerning the disputed matter or a written determination that the disputed matter will not be relied on for sentencing, and then attached it to the presentence report. Id. at 1175. These procedures, when strictly followed, ensure that the defendant's sentence is based on accurate and reliable information and that subsequent recipients of the report are aware of whatever resolutions occurred at sentencing.

... Thus all a defendant needs to show in order to be resentenced for a violation of Rule 32(c)(3)(D) is that (1) allegations of inaccuracy were before the sentencing court and (2) the court failed to make findings regarding the controverted matters or a determination that the disputed information would not be used in sentencing.

782 F.2d at 1388 [cites omitted].

Because "it was not improbable that the trial judge was influenced by improper factors in imposing sentence," Rone, 743 F.2d at 1174, the district court must follow 32(c)(3)(D). While a hearing into the controverted matters would indeed be difficult in this...