U.S. v. Edwards

• Decision Date: 23 September 1986
• Docket Number: No. 85-1117,85-1117
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guy Robin EDWARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 878

800 F.2d 878

UNITED STATES of America, Plaintiff-Appellee, v. Guy Robin EDWARDS, Defendant-Appellant.

No. 85-1117.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 28, 1986.

Decided Sept. 23, 1986.

Leslie Osborne, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Jack F. Schweigert, Schweigert & Associates, Honolulu, Hawaii, for defendant-appellant.

Appeal from the United States District Court for the District of Hawaii.

Before FERGUSON, CANBY and HALL, Circuit Judges.

CANBY, Circuit Judge:

Guy Robin Edwards appeals his sentence, imposed after he pleaded guilty to three drug trafficking counts. ¹ We affirm in part and reverse in part.

Edwards' plea was accepted by Judge King on May 8, 1984, after the commencement of trial. On September 10, 1984, Judge King conducted a sentencing hearing during which Edwards challenged some information in the presentence report relating to the extent of his involvement in drug transactions and to allegations that he attempted to influence witnesses. ² Judge King determined that an evidentiary hearing was necessary and set the hearing for November 19, 1984. After several continuances and over Edwards' objection, the evidentiary hearing was conducted on April 22, 1985, before a visiting judge, Judge Belloni, who pronounced sentence. No findings on controverted matters were entered at the time of sentencing; findings were entered several months after Edwards appealed.

Edwards appeals his sentence. He argues that he must be resentenced because the sentencing judge failed to enter the findings required by Rule 32(c)(3)(D), Federal Rules of Criminal Procedure, at the time of sentencing. He contends that the district court lacked jurisdiction to enter its findings after Edwards filed his notice of appeal. Edwards also contends that the district court erred by denying his motion to continue sentencing in order to permit Judge King, who took his guilty plea and conducted the initial sentencing proceeding, to preside over the evidentiary hearing and to pronounce sentence.

I. Presentence Report

A defendant who challenges information used in sentencing must show that the information " 'is (1) false or unreliable, and (2) demonstrably made the basis for the sentence.' " ³ United States v. Stewart, 770 F.2d 825, 832 (9th Cir.1985) (quoting United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984)), cert. denied, --- U.S. ----, 106 S.Ct. 888, 88 L.Ed.2d 922 (1986). Federal Rule of Criminal Procedure 32(c)(3)(D) governs the district court when a defendant challenges information in the presentence report. See United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984).

Rule 32(c)(3)(D) provides:

If the comments of the defendant and his 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. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.

Fed.R.Crim.P. 32(c)(3)(D) (emphasis added). Thus, Rule 32(c)(3)(D) imposes two requirements upon the sentencing judge. The first requirement is to make a finding concerning the controverted information or to make a determination that no such finding is necessary because the controverted matter will not be taken into consideration in sentencing. See Stewart, 770 F.2d at 832. See also United States v. Hill, 766 F.2d 856, 858 (4th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 257, 88 L.Ed.2d 263 (1985). The second requirement is to append a written record of such findings to the presentence report. See United States v. Petitto, 767 F.2d 607, 610 (9th Cir.1985); United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986). Strict compliance with Rule 32(c)(3)(D) is required, and failure to comply will result in remand. Petitto, 767 F.2d at 610.

In this case, Edwards clearly controverted two matters addressed by the presentence report. ⁴ The first concerns Edwards' involvement in other drug dealings. The prosecution version, set forth in the presentence report, refers to a signed statement by one of Edwards' co-conspirators to the effect that Edwards was "a source who was able to bring in pound quantities of cocaine from California." The prosecution version also states that Edwards was a "multi-ounce source" for two cocaine dealers named Fish and Reames. Edwards' signed statement, however, says that Fish and Reames were lying and that Edwards does not remember ever having met them. Edwards generally denied the other drug dealings attributed to him, except for the one to which he pleaded guilty.

The second matter controverted by Edwards concerned his alleged attempts to suborn perjury or obstruct justice. The prosecution version states that Fish "informed" that Edwards offered him $10,000 and a job if Fish would not testify against Edwards. The prosecution version further states that the U.S. Attorney's office advised that Edwards had requested his parents and brother to perjure themselves by supplying Edwards with a false alibi, and that in order to prevent such perjury by Edwards' brother, Edwards' father elected to testify against Edwards, a development that led to Edwards' decision to plead guilty. Edwards, on the other hand, stated that Fish was lying, and that his father's decision to testify against him arose from wholly different causes. Edwards' brother testified at the first sentencing hearing that Edwards had never asked him or his parents to perjure themselves.

Neither of these two general disputes has ever been resolved. There were no factual findings entered in connection with the hearing before Judge King. At the later evidentiary hearing before Judge Belloni, one additional witness ⁵ testified for Edwards, with regard to other matters. No findings were entered concerning whether Edwards had been involved in additional drug dealings, or had attempted to induce witnesses to refrain from testifying or to perjure themselves. Nor, despite the government's arguments to the contrary, can we find any statement on the record that the resolution of these disputes was unnecessary because the judge was not taking them into account in passing sentence.

The government contends that one statement by Judge Belloni indicates that he was disregarding these disputed matters. At the second evidentiary hearing, the government attorney made an argument portraying Edwards as a major figure in the cocaine conspiracy, reciting that there were several things "we know" concerning Edwards' complicity. When Edwards' attorney began to make a statement in contradiction, Judge Belloni stated:

You might be--you may speak. It might be wasting your time because all of these things that Mr. Osborn says we know. ⁶ I don't know, nor even necessarily accept. I do know certain things, including the fact that Mr. Edwards pleaded guilty to Counts 1, 2 and 3. And I know a few other things, mostly from Mr. Edwards' statement. So that's what I know. So if you're going to ...

In context, we cannot regard these remarks as a statement that all of the disputed matters were being disregarded for purposes of sentencing, within the meaning of Fed.R.Crim.P. 32(c)(3)(D). Instead, Judge Belloni appears simply to have been pointing out that the government attorney could not speak for the court concerning what was "known" about Edwards.

This case differs from Ibarra, where we found a somewhat ambiguous statement of a sentencing judge to comply with Rule 32. There, however, the sentencing judge stated that two particular disputed points did not matter. They were the only points in issue. Judge Belloni's statement, on the other hand, did not encompass all of the disputed factual issues, nor did it specify which matters were being disregarded and what "few other things" were still being taken into account. To accept the statement as a fulfillment of the requirements of Rule 32(c)(3)(D), a purpose the statement does not seem to have been intended to serve, would ignore the caveat we issued in Ibarra:

[T]he district courts should follow the command of Fed.R.Crim.P. 32(c)(3)(D) more precisely. When a district court confronts a challenge to the accuracy of information in a presentence report, it should explicitly state for the record either its finding regarding the challenge, or its decision not to take the matter controverted into account when imposing sentence. By adhering to this modest requirement, the district courts can help reduce unnecessary appeals based on the parties' misunderstanding of the record.

Ibarra, 737 F.2d at 827-28 (emphasis added) (footnote omitted). That caveat is in accord with the Fourth Circuit's ruling on the requirements of Rule 32(c)(3)(D):

Reading the wording of the rule together with the Advisory Committee Notes, we have come to the conclusion that for any such controverted factual matter the district court should state on the record how it has treated the matter. It is not necessary for the district court in each case to make a finding that the controverted fact is either true or not true, but it is necessary for the district court to say how it treats the controverted fact in sentencing.

Hill, 766 F.2d at 858 (emphasis added).

The district court did enter findings of fact with respect to sentencing some five months after Edwards filed his notice of appeal. The government contends that these findings fulfill the requirement of Rule 32(c)(3)(D), ⁷ while Edwards argues that the district court lacked jurisdiction to enter them because of the filing of his notice of appeal. We agree with Edwards.

The effective...