U.S. v. Saeteurn

• Decision Date: 15 October 2007
• Docket Number: No. 06-10401.,06-10401.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kae Chai SAETEURN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

504 F.3d 1175

UNITED STATES of America, Plaintiff-Appellee, v. Kae Chai SAETEURN, Defendant-Appellant.

No. 06-10401.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 2007.

Filed October 15, 2007.

Daniel J. Broderick, Federal Defender, Timothy Zindel, Assistant Federal Defender, Sacramento, CA, for the defendant-appellant.

McGregor W. Scott, United States Attorney, Anne E. Pings, Kyle Riordan, Assistant United States Attorneys, Sacramento, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding. D.C. No. CR-05-00033-DFL.

Before: HAWKINS, A. WALLACE TASHIMA, and CARLOS T. BEA, Circuit Judges.

BEA, Circuit Judge:

This case deals with sentencing practice. Specifically, is the sentencing judge required to resolve disputes regarding facts recited in the Presentence Investigation Report ("PSR"),¹ when those facts do not affect the term of imprisonment imposed, but may affect how the sentence is served, including a possible early release from prison? We hold that there is no such requirement upon the sentencing judge. We also consider whether the sentencing judge imposed a reasonable sentence in this case. We conclude that he did.

I.

Kae Chai Saeteurn was indicted on several narcotics offenses, including one count of conspiracy to distribute 3, 4-Methylene-dioxymethamphetamine HCL ("MDMA")² in violation of 21 U.S.C. §§ 841(a)(1)³ and 846⁴; one count of distribution of MDMA in violation of 21 U.S.C. § 841(a)(1); and one count of possession with intent to distribute MDMA in violation of 21 U.S.C. § 841(a)(1). Saeteurn entered a plea of guilty to the count of conspiracy to distribute MDMA and the count of possession with intent to distribute MDMA. The district court sentenced Saeteurn to 63 months in prison followed by a 36-month term of supervised release.

A. Underlying Crime

Saeteurn's conviction was a result of his distribution of MDMA and cocaine in the Sacramento area. Before Saeteurn's indictment, agents from the Drug Enforcement Administration ("DEA") conducted an investigation of Saeteurn's co-defendant John Kim. A confidential source had identified Kim as a seller of MDMA and cocaine in the Sacramento area. The investigation also identified Randel Santos, Lina Pak, and Saeteurn as Kim's associates in the distribution of controlled substances.

During the DEA's investigation, the confidential source and an undercover officer purchased MDMA pills from Kim and Santos on a number of occasions.⁵ On one occasion, Pak delivered approximately 1,000 pills the undercover officer had purchased from Kim and Santos. Pak later identified Saeteurn as the supplier of these pills. On another occasion, Kim and Santos were arrested while delivering 3,000 MDMA pills to the undercover officer. Kim agreed to assist officers in arresting others involved in selling MDMA and called Saeteurn, asking him to supply Kim with 3,000 MDMA pills. Officers arrested Saeteurn when he arrived to provide Kim with the 3,000 MDMA pills.

Kim, Santos, Pak, and Saeteurn all pleaded guilty the same day. The district court sentenced all co-defendants at the same sentencing hearing.

B. Sentencing Hearing

Before the sentencing hearing, the probation officer prepared a PSR, which calculated a sentencing range for Saeteurn of 78 to 97 months' imprisonment based on the nowadvisory Sentencing Guidelines ("Guidelines"). The PSR recommended a sentence of 78 months.⁶ PSR at 19. The PSR listed Saeteurn's citizenship status as "Legal permanent resident."

Saeteurn contested his citizenship status listed in the PSR at the sentencing hearing. Saeteurn claimed he automatically became a United States citizen when his mother became a citizen on December 4, 1996, because he was a minor child at the time.⁷ The district court expressed doubt as to whether it was "in a position to resolve" that "legal question." Instead of resolving the contested issue, the district court ordered that the PSR be amended to state that Saeteurn was either a "legal permanent resident or citizen." The issue is important to Saeteurn because his counsel believed that it would affect the place where Saeteurn would be designated to serve his 63-month sentence, whether he would be eligible to participate in certain rehabilitative programs, and whether he would be eligible for early release from prison, but not from supervised release, upon successful completion of those programs.

The court sentenced Kim to 60 months' imprisonment, Santos to 72 months' imprisonment, Saeteurn to 63 months' imprisonment, and Pak to 37 months' imprisonment. While the court considered the 18 U.S.C. § 3553(a) factors for each defendant, the court also noted that it wanted to avoid disparity in sentencing among the co-defendants given their respective roles in the conspiracy.

Saeteurn timely appealed his sentence, raising two challenges. First, Saeteurn asserts that the district court failed to comply with Federal Rule of Criminal Procedure 32(i)(3)(B) by not resolving Saeteurn's objection to his citizenship status in the PSR. Second, Saeteurn asserts that the district court misapplied 18 U.S.C. § 3553(a)(6) by attempting to achieve parity in sentencing amongst his co-defendants and thus imposed an unreasonable sentence on Saeteurn. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we reject both assertions.

II.

We review de novo the district court's compliance with Federal Rule of Criminal Procedure 32. United States v. Thomas, 355 F.3d 1191, 1194 (9th Cir. 2004). We review a district court's sentence for reasonableness in light of the sentencing factors set forth in 18 U.S.C. § 3553(a). United States v. Cantrell, 433 F.3d 1269, 1278 (9th Cir.2006). The Supreme Court has recently clarified that we may attach a presumption of reasonableness to sentences falling within the Guidelines range. Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2462-68, 168 L.Ed.2d 203 (2007).

III.

We first consider Saeteurn's assertion that the district court failed to comply with Federal Rule of Criminal Procedure 32(i)(3)(B) by failing to resolve the factual dispute surrounding his citizenship status.⁸ Rule 32(i) provides, in relevant part:

(3) At sentencing, the court:

. . . .

(B) must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and

(C) must append a copy of the court's determination under this rule to any copy of the presentence report made available to the Bureau of Prisons.

Fed.R.Crim.P. 32(i)(3)(B), (C). On past occasions, we have held that "[s]trict compliance with the rule is required." United States v. Garfield, 987 F.2d 1424, 1428 (9th Cir.1993) (citing United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc)). "If the district court has failed to make the requisite findings, this court must vacate the sentence and remand for resentencing." Id. However, "[i]f the district court chooses not to rely upon a disputed factual statement in the PSR, it need not resolve the dispute, but it must clearly state that the disputed fact was not taken into account in finding the enhancement appropriate." United States v. Carter, 219 F.3d 863, 867 (9th Cir.2000). Although we agree with Saeteurn that the district court did not resolve his objection,⁹ we disagree that such failure violated Rule 32(i)(3)(B). We reach this conclusion for three reasons.

First, although we have admittedly used broad language in the past to describe the district court's obligation to comply with Rule 32(i)(3)(B), we have never considered a situation where the disputed fact stated in the PSR has no effect on the temporal term of the sentence the district court imposed. Instead, each of our cases considering whether the district court complied with the rule involved factual disputes underlying sentencing enhancements of prison time to be served under the Guidelines. See, e.g., United States v. Leyva-Franco, 311 F.3d 1194 (9th Cir. 2002) (per curiam) (dispute over whether the criminal conduct constituted aberrant behavior, see U.S.S.G. § 5K2.20); United States v. Herrera-Rojas, 243 F.3d 1139 (9th Cir.2001) (dispute over whether the defendant had the intent to create a risk of death or serious bodily injury, see U.S.S.G. § 2L1.1(b)(5)); Carter, 219 F.3d 863 (dispute over whether the defendant was a "manager" or "supervisor," see U.S.S.G. § 3B1.1); United States v. Standard, 207 F.3d 1136 (9th Cir.2000) (dispute over the amount of improper deductions taken in a tax fraud prosecution, see U.S.S.G. § 2T1.3(a)).¹⁰

In this case, Saeteurn's objection had no relevance to the district court's determination of the prison time of his sentence. The only relevance of Saeteurn's citizenship as listed in the PSR is its potential effect on the Board of Prison's ("BOP") post-sentencing decisions, such as where to house Saeteurn and Saeteurn's eligibility for prison programs and early release from prison, but not necessarily from supervised release. Because our cases which have applied Rule 32(i)(3)(B) are confined to factual disputes which affected the temporal prison term of the sentence the district court imposed, Saeteurn's contention the district court violated the rule in this case has no precedential support.

Second, according to the Advisory Committee on Criminal Rules ("Advisory Committee"), Rule 32(i)(3)(B) applies only to matters that will affect the determination and imposition of a correct sentence. It does not apply to disputes that will affect only post-sentence decisions and the manner and location of service of the sentence. As the Advisory Committee reported:

[T]he Committee considered, but did not adopt, an amendment that would have required the...