U.S. v. Stapleton, 01-1480

• Decision Date: 12 June 2001
• Docket Number: No. 01-1480,01-1480
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. JOSHUA D. STAPLETON, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 597

268 F.3d 597 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. JOSHUA D. STAPLETON, APPELLANT.

No. 01-1480

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: June 12, 2001

Filed: September 12, 2001

Appeal from the United States District Court for the Western District of Missouri

Before Loken, Hall,¹ and Rosenbaum,² Circuit Judges.

Cynthia Holcomb Hall, Circuit Judge.

Defendant Joshua Stapleton challenges his sentence for unlawful possession of a firearm by a convicted felon under 18 U.S.C. § 922(g). In calculating Stapleton's criminal history score under the sentencing guidelines, the district court relied solely on a presentence report ("PSR"). Both before and during sentencing, Stapleton objected that the PSR wrongly counted two municipal convictions and a 1992 juvenile adjudication in calculating his criminal history category. He argues that the district court is required to do more at sentencing than adopt the factual findings proposed by a probation officer in a PSR when those factual findings are in dispute. We agree.

A specific objection to a statement in a PSR triggers a district court's obligation to make a finding as to the factual dispute. See Fed. R. Crim. P. 32(c); United States v. Arrington, 215 F.3d 855, 867 (8th Cir. 2000). In making its finding, the district court is bound to "do so on the basis of the evidence and not the presentence report" because "the presentence report is not evidence and not a legally sufficient bas[i]s for making findings on contested issues of fact." United States v. Greene, 41 F.3d 383, 386 (8th Cir. 1994).

Stapleton objects to the PSR's account of his previous convictions for two reasons. First, he contends that he never pled guilty to the two municipal convictions. Second, he maintains that he did not serve any part of his 1992 juvenile conviction within five years of the commission of the instant offense, and, therefore, it should not be counted towards his criminal history score. See U.S.S.G. § 4A1.2(d)(2)(A). Here, the sentencing judge did note Stapleton's objections and gave his counsel the opportunity to speak to them in court. The judge, thereafter, asked the probation officer who wrote the PSR for his response. But while the judge or Stapleton's counsel occasionally asked the probation officer follow up questions, no further inquiry was made.

We recognize that the Sentencing Guidelines do not mandate a full evidentiary hearing when a defendant disputes a PSR's factual representation. See U.S.S.G. § 6A1.3, commentary (explaining that "[w]ritten statements of counsel or affidavits of witnesses may be adequate under many circumstances" for settling a factual dispute about a factor important to the sentencing determination). But some investigation and verification of the disputed statements in the PSR is required. The government admits that it presented no evidence regarding either the municipal convictions or the juvenile adjudications other than the statements offered by the probation officer in response to the court's questions.

The probation officer was not under oath at the sentencing hearing and Stapleton's counsel did not have an opportunity to cross-examine him. We do not find this to be a sufficient basis for resolving the factual disputes over the PSR's accounts of the...