U.S. v. Eschweiler

• Decision Date: 30 January 1986
• Docket Number: Nos. 85-1058,85-1536,s. 85-1058
• Citation: 782 F.2d 1385
• Parties: -1348, 89-2 USTC P 9400 UNITED STATES of America, Plaintiff-Appellee, v. Andrew ESCHWEILER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1385

782 F.2d 1385

63 A.F.T.R.2d 89-1348, 89-2 USTC P 9400

UNITED STATES of America, Plaintiff-Appellee, v. Andrew ESCHWEILER, Defendant-Appellant.

Nos. 85-1058, 85-1536.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 23, 1985.

Decided Jan. 30, 1986.

Donald V. Morano, Chicago, Ill., for defendant-appellant.

Ted S. Helwig, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and GRANT, Senior District Judge. ^*

CUMMINGS, Chief Judge.

Andrew Eschweiler pled guilty to one count of distribution of cocaine, a violation of 21 U.S.C. Sec. 841(a). He received a two-year sentence to run consecutive to a previous five-year sentence. The defendant appeals from the sentencing hearing, claiming a violation of Federal Rule of Criminal Procedure 32(c)(3)(D). He also appeals from the district court's refusal to exonerate his bail bond pursuant to Federal Rule of Criminal Procedure 46(f). This Court has jurisdiction pursuant to 28 U.S.C. Sec. 1291. We affirm.

Statement of the Case and Facts

On April 12, 1984 the defendant Andrew Eschweiler was arrested while on appeal bond from a previous federal narcotics conviction. ¹ He was indicted on May 3, 1984 with three counts of sales of cocaine and marijuana in violation of 21 U.S.C. Sec. 841(a)(1). Bail was set at $50,000 cash, which the defendant's brother posted, designating the defendant as recipient. The government requested a Nebbia ² hearing to determine the source of the funds. The hearing was never held, but Eschweiler was released on April 24, 1984 after additional security was posted.

On November 2, 1984 Eschweiler pled guilty to Count I (sale of 13.26 grams of cocaine) under a conditional plea agreement in accordance with Fed.R.Crim.P. 11(e)(1)(C). At the December 28, 1984 sentencing hearing, although not specifically asked, the defendant raised several objections to the presentence report. The judge did not refer to the objections, make findings, or state that he would not rely on the disputed facts in sentencing the defendant. The judge did, however, state the basis on which he was sentencing the defendant. Eschweiler received the maximum sentence under the plea agreement, two years to run consecutive to his previous five-year sentence. Eschweiler appeals from the sentencing hearing, claiming a violation of Fed.R.Crim.P. 32(c)(3)(D).

After the defendant was sentenced and he surrendered, he moved to exonerate the bond pursuant to Fed.R.Crim.P. 46(f). Judge Hart denied that motion on March 29, 1985 because the Internal Revenue Service (IRS) had levied against the $50,000 bail bond for back taxes it had assessed against the defendant. ³ The defendant appeals from the denial of his bond exoneration motion.

There are two issues before this Court on appeal. ⁴ First, whether the case should be remanded due to a violation of Fed.R.Crim.P. 32(c)(3)(D). Second, whether the bond posted as defendant's bail should be released to its proper owner under the motion to exonerate. We affirm both the sentence and the denial of the bail exoneration motion, but remand for full compliance with Rule 32(c)(3)(D).

I. RULE 32(c)(3)(D)

A. Purpose

When a defendant alleges inaccuracies in his or her presentence report, Fed.R.Crim.P. 32(c)(3)(D) ⁵ requires that the sentencing judge make written findings as to the allegations or a written determination that the disputed matters will not be relied upon for sentencing. The rule also requires that these written findings or determinations be attached to the presentence report. This rule was contained in the 1983 amendments to Rule 32.

Rule 32(c)(3)(D) serves a dual purpose. First, it protects a defendant's due process right to fair sentencing procedures, particularly the right to be sentenced on the basis of accurate information. Fed.R.Crim.P. 32 Advisory Committee notes; see United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948); United States ex rel. Welch v. Lane, 738 F.2d 863, 864-865 (7th Cir.1984). Thus, in order to show a due process violation, the defendant must raise grave doubt as to the veracity of the information and show that the court relied on that false information in determining the sentence. ⁶ United States v. Harris, 558 F.2d 366, 375 (7th Cir.1977).

The second purpose of Rule 32(c)(3)(D) is to provide a clear record of the disposition and resolution of controverted facts in the presentence report. Advisory Committee notes, supra; United States v. Rone, 743 F.2d 1169 (7th Cir.1984). This record aids both appellate courts in their review of sentencing hearings and administrative agencies that use the report in their own decisionmaking procedures. ⁷ For example, if the court finds that information in the report is unreliable or simply decides not to rely on the disputed facts in sentencing, by following Rule 32(c)(3)(D) that decision will become part of the presentence report. This reduces the likelihood of later decisions being made on the basis of improper information. United States v. Petitto, 767 F.2d 607, 609 (9th Cir.1985). Moreover, if the record does not clearly reflect whether or not the information was relied on, appellate courts or prison officials may make incorrect assumptions about the disposition of alleged inaccuracies. Thus a court that fails to follow Rule 32(c)(3)(D) may not necessarily violate a defendant's right to due process; nonetheless, a violation of the Rule could require a remand for resentencing. See id.; United States v. O'Neill, 767 F.2d 780 (11th Cir.1985).

Both of these objectives are met when sentencing judges follow the procedures set forth in United States v. Rone, 743 F.2d 1169 (7th Cir.1984). Rone requires that the sentencing judge ask the defendant three questions in order to comply with Rule 32. ⁸ (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. ⁹

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 attach 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.

B. Standard

The government in its brief has raised the issue of what burden the defendant must meet before resentencing under Rule 32(c)(3)(D) is required. The government argues that there should be no resentencing because the defendant has failed to show that the contested facts in the presentence report are actually false. The government incorrectly cites Rone as holding defendants to the Harris burden of raising grave doubt about the reliability or accuracy of the presentence report information in order to show a violation of the Rule. See supra, discussion at 1387. However, the court in Rone simply noted that the defendant had met the Harris standard for demonstrating a due process violation. The court stated, "The defendant, however, has met the burden, which would have been imposed even under the old rules and our [Harris ] precedent ..." to show a due process violation. 743 F.2d at 1174 (emphasis added). The showing necessary to demonstrate a constitutional violation should not be confused with that required to make out a Rule 32 violation. Resentencing may be necessary under the Rule even though a defendant's right to due process has not been violated. Petitto, 767 F.2d at 610 ("although the due process sentencing standards ... were satisfied, rule 32 still requires a remand"); United States v. O'Neill, 767 F.2d 780, 787 (11th Cir.1985)(court found it unnecessary to address defendant's due process claim because the trial court's failure to comply with Rule 32(c)(3)(D) required resentencing); United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984) (court ordered resentencing because district court failed to comply with a procedural rule). 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. See United States v. Travis, 735 F.2d 1129, 1132-1133; Petitto, 767 F.2d at 611; O'Neill, 767 F.2d at 787; Velasquez, 748 F.2d at 974. ¹⁰ Unless the government can then demonstrate that the disputed facts were not relied upon, the defendant must be resentenced.

C. Application

In this case the sentencing judge failed to meet the requirements of Rule 32(c)(3)(D). At the sentencing hearing the defendant objected to certain information contained in the report, alleging it to be false:

First of all, I wanted to mention that I am very upset about the numerous erroneous information that was given to you in the presentence report. They are false, many of them are false, and I would like to mention a few for the record.

I am not a big drug dealer. I was not making $15,000 a year--a night breaking up large quantities of five ounces in a pack.

Transcript, December 28, 1984, at 9.

According to Rone, when the defendant raises inaccuracies in the presentence report, the requirements of Rule 32(c)(3)(D) are triggered, 743 F.2d at 1175. Despite the...