U.S. v. Petitto, 84-5277

• Decision Date: 08 October 1985
• Docket Number: No. 84-5277,84-5277
• Citation: 767 F.2d 607
• Parties: UNITED STATES of America, Plaintiff/Appellee, v. Kenneth PETITTO, Defendant/Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 607

767 F.2d 607

UNITED STATES of America, Plaintiff/Appellee, v. Kenneth PETITTO, Defendant/Appellant.

No. 84-5277.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 1, 1985.

Decided July 30, 1985.

As Amended Oct. 8, 1985.

John Gordon, Los Angeles, Cal., for plaintiff/appellee.

Stanley I. Greenberg, Los Angeles, Cal., for defendant/appellant.

On appeal from the United States District Court for the Central District of California.

Before HUG and BOOCHEVER, Circuit Judges, and SOLOMON, ^* District Judge.

BOOCHEVER, Circuit Judge:

Petitto pled guilty to two drug trafficking counts. At sentencing, Petitto challenged the accuracy of information in the presentence report. The court allowed Petitto to comment on the report, and ordered the government to corroborate some of the information, but did not hold an evidentiary hearing. The court also failed to make explicit findings about the disputed matter and attach them to the presentence report as required by Fed.R.Crim.P. 32(c)(3)(D). Petitto appeals his sentence, asserting that the court abused its discretion in not holding a hearing and erred in not making the required explicit findings. Because the district court erred in failing to make explicit findings under rule 32(c)(3)(D), we reverse and remand. For reasons explained below, we do not rule on the hearing question.

FACTS

Petitto pled guilty to one count of conspiracy to possess and distribute cocaine, and two counts of possession of cocaine with intent to distribute.

At the plea proceedings, Petitto admitted to the judge that he had twice accompanied codefendants on trips from Massachusetts to Florida to purchase cocaine, although he asserted that on one of the trips no purchase actually occurred. He also admitted engaging in contrived real estate transactions with a codefendant to launder drug profits. He denied, however, the government's assertion that he had made more than two trips and that he had received and distributed cocaine on at least twenty occasions. According to Petitto, the two trips were the extent of his involvement. He never actually handled the cocaine and he voluntarily withdrew from the conspiracy.

At the sentencing proceeding, after dismissing one of the possession counts, the court allowed the defense to comment on the presentence report. Petitto again disputed the government's assertion, repeated in the presentence report, that he had made more than two trips or that he had received cocaine to distribute. The court asked the government to provide more information on that point, and continued the sentencing.

At the second sentencing hearing, the court allowed comment by both the prosecution and the defense on the supplementary materials submitted, which included transcripts of grand jury testimony and DEA reports. The dispute over the number of trips was apparently resolved, both sides agreeing that Petitto only went to Florida twice. The twenty occasions referred to in the report were not trips to Florida, but were incidents in Massachusetts when, according to Pamela Richards, a government grand jury witness, Petitto received amounts of cocaine which he then divided up and distributed. Petitto again flatly denied participating in cutting and distribution, although he admitted that he was aware of it.

Counsel for Petitto then stated that if the court were going to rely on the disputed allegations, the defense wanted an evidentiary hearing under rule 32; if the court were going to disregard them, the defense would not request one. In response, the court did not explicitly state whether it was relying on the disputed information:

THE COURT: I'm a little puzzled, Mr. Greenberg, why you had Mr. Petitto plead guilty in this case. If you wanted to try it, you should have had a trial. To try to get a trial in this fashion seems to me to be inappropriate.

There being no legal cause why sentence should not now be imposed, and the Court having heard from the defendant and his counsel; the defendant and his counsel having informed the Court they have read the presentence report together with the supplemental material submitted therewith, and bearing in mind the statements made by Mr. Greenberg, counsel on behalf of Mr. Petitto, and raising the question as to the reliability of the testimony of Pamela Richards, and the accuracy of the DEA report, it is hereby adjudged that on Count 1, the defendant is sentenced....

I. FAILURE TO MAKE EXPLICIT FINDINGS AND ATTACH THEM TO THE PRESENTENCE REPORT

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.

This entirely new subsection was added to rule 32 in 1983 to "ensure that a record is made as to exactly what resolution occurred as to controverted matter," and that "this record comes to the attention of the Bureau [of Prisons] or [the Parole] Commission when these agencies utilize the presentence report." Notes of Advisory Committee on Rules, reprinted in 18 U.S.C.A. following Rule 32 (West Supp.1985). Both the language of the rule and the Advisory Committee notes indicate that making and attaching explicit findings to the presentence report is mandatory.

In this case, Petitto alleged factual inaccuracies in the report but the trial court made no explicit findings as to each matter controverted. We have previously held that strict compliance with rule 32(c)(3)(D) is required, and that failure to comply must result in remand. United States v. Travis, 735 F.2d 1129, 1132-33 (9th Cir.1984). Travis reached this result even though it appeared from the record that the district court had not in fact considered the controverted matters in sentencing. Id. Thus although the due process sentencing standards discussed in Part II of this opinion were satisfied, rule 32 still required a remand. We agree with Travis, for the primary purpose of rule 32(c)(3)(D) is to ensure that the presentence report used by the Bureau of Prisons and the Parole Board be as accurate as possible. Unless the court makes explicit findings and attached them to the report, even if it finds a challenged allegation in the presentence report untrue, and does not rely on it for sentencing, prison or parole officials may subsequently receive the uncorrected report and rely on the false allegation in correctional or parole decisions. That possibility is precisely what rule 32(c)(3)(D) seeks to prevent. Notes of Advisory Committee on Rules, supra; United States v. Velasquez, 748 F.2d 972, 974 (5th Cir.1984).

Moreover, another function of rule 32(c)(3)(D), "to ensure that a record is made as to exactly what resolution occurred as to controverted matter," requires strict enforcement of the written record provision. Rule 32(c)(3)(D) attempts to eliminate uncertainty when, as on appeal, it is necessary to determine what information the trial court relied on in sentencing. Cf. United States v. Scalzo, 716 F.2d 463, 468 (7th Cir.1983) (emphasizing the importance on appeal of written trial court findings about reliance on presentence report information not disclosed pursuant to 32(c)(3)(B) ). As we explain below, for example, a clear record as to what information the sentencing court relied upon is crucial to deciding whether the court abused its discretion in not granting an evidentiary hearing.

We also note that the one other circuit which has thus far ruled on this point reached the same result as Travis. Velasquez, 748 F.2d at 974-75; see also United States v. Satterfield, 743 F.2d 827, 840-41 (11th Cir.1984) (in discussing protection afforded to defendant by rule 32(c)(3)(D) in context of challenge to constitutionality of the Victim and Witness Protection Act, court stated that 32(c)(3)(D) requires factual finding on record). We therefore hold that failure to make written record of findings on disputed allegations...