U.S. v. Turner

• Decision Date: 12 March 1990
• Docket Number: 89-30081 and 89-30103,Nos. 89-30036,s. 89-30036
• Citation: 898 F.2d 705
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mickey TURNER, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Raven BELER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lee SMITH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 705

898 F.2d 705

UNITED STATES of America, Plaintiff-Appellee, v. Mickey TURNER, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Raven BELER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Anthony Lee SMITH, Defendant-Appellant.

Nos. 89-30036, 89-30081 and 89-30103.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 30, 1989.

Decided March 12, 1990.

James L. Vonasch, Michael C. Nance, Nance, Iaria & Gombiner, Allen M. Ressler, Browne & Ressler, Seattle, Wash., for defendants-appellants.

Andrew Hamilton, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, SCHROEDER and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Mickey Turner, Kenneth Beler, and Anthony Smith, co-defendants below, appeal from their sentences for convictions, following guilty pleas, on separate drug trafficking charges. Appellants challenge, among other things, the district court's calculations of their offense levels under the sentencing guidelines and the court's treatment of certain objections to their presentence investigation reports. We affirm Turner and Smith's sentences, but remand Turner's sentence for compliance with Fed.R.Crim.P. 32(c)(3)(D). We vacate Beler's sentence and remand for resentencing.

I. BACKGROUND

On October 6, 1988, a federal grand jury returned a ten-count indictment against Mickey Turner, Kenneth Beler, Anthony Smith, and seven others. The indictment charged the defendants with one count of conspiring to distribute cocaine, seven counts of distributing cocaine, one count of possessing cocaine with intent to distribute, and one count of knowingly using a firearm during and in relation to the charged conspiracy. Turner, Beler, Smith, and a co-defendant pleaded guilty to separate counts; the other co-defendants proceeded to trial. Trial testimony revealed that appellants, who moved to Washington state from Los Angeles, sold crack cocaine throughout the Seattle metropolitan area.

II. DISCUSSION

A. Standard of Review

The legality of a sentence is reviewed de novo. United States v. Pomazi, 851 F.2d 244, 247 (9th Cir.1988). In reviewing a sentence under the sentencing guidelines, the panel must determine, inter alia, whether the sentence (1) "was imposed as a result of an incorrect application of the sentencing guidelines," and (2) "is outside the application guideline range, and is unreasonable." 18 U.S.C. Sec. 3742(e); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989). A district court's findings of fact are reviewed for clear error and due deference is given to the district court's application of the guidelines to the facts. Id.; Sanchez-Lopez, 879 F.2d at 557.

B. Turner

Turner pled guilty to distributing more than fifty (50) grams of cocaine base in furtherance of the conspiracy charged in count I, in violation of 21 U.S.C. Secs. 812, 841(a)(1) and 841(b)(1)(A) (count V). On January 20, 1989, he was sentenced under the sentencing guidelines to a 151-month term of imprisonment followed by a five-year term of supervised release. Turner raises four issues on appeal.

1. Good Time Credits

First, Turner contends that pre-Sentencing Reform Act good time provisions should apply to his sentence because he pled guilty after this circuit held the Sentencing Reform Act of 1984 (SRA) unconstitutional in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988). Prior to November 1, 1987, federal law provided for a system of meritorious and work-related good time credits. See 18 U.S.C. Secs. 4162 and 4163 (1982). The SRA repealed those provisions and reduced the number of good time credits available. See 18 U.S.C. Sec. 3624(b) (Cum.Supp.1988); Gubiensio-Ortiz, 857 F.2d at 1267. Turner's offense occurred on August 18, 1989, thus making him subject to sentencing under the SRA and its less favorable good time provisions. ¹

The Supreme Court upheld the constitutionality of the SRA on January 18, 1989. Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). This circuit has applied Mistretta retroactively to sentences imposed after Gubiensio-Ortiz. See United States v. Bazemore, 869 F.2d 520, 521 (9th Cir.1989) (remanding cases for sentencing under the SRA); United States v. Kane, 876 F.2d 734, 736 (9th Cir.) (enabling government to appeal sentencing order under SRA provision), cert. denied, --- U.S. ----, 110 S.Ct. 173, 107 L.Ed.2d 130 (1989). Thus, the fact that Turner was sentenced while the SRA was held to be unconstitutional by this circuit does not warrant the application of pre-SRA good time credits to his sentence. See Kane, 876 F.2d at 735 (appellant's "argument fails because it rests on the faulty premise that Mistretta, which overruled Gubiensio-Ortiz, does not apply retroactively").

2. Objections to Presentence Investigation Report

Second, Turner contends that the district court erred by (1) not deleting certain objected to statements in his presentence investigation report, and (2) failing to make written findings regarding those statements and to attach them to the report.

When a defendant challenges information contained in his presentence investigation report, the district court must make findings of fact concerning any disputed matter which it relies upon in sentencing. Fed.R.Crim.P. 32(c)(3)(D). "Violations of a defendant's due process rights occur when a court relies on materially false or unreliable information in sentencing." United States v. Columbus, 881 F.2d 785, 787 (9th Cir.1989); United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986).

Rule 32(c)(3)(D) was designed to ensure that due process is achieved at sentencing. Messer, 785 F.2d at 834. ² The rule requires that a sentencing judge make a finding as to each matter controverted or make a determination that no such finding is necessary because the controverted matter will not be taken into account in sentencing. United States v. Edwards, 800 F.2d 878, 881 (9th Cir.1986). Strict compliance with Rule 32(c)(3)(D) is required and failure to comply will result in the case being remanded. United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir.1987); Edwards, 800 F.2d at 881; Messer, 785 F.2d at 834; cf. United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984) (substantial compliance required).

Here, Turner objected to statements in his presentence investigation report which identified certain co-defendants as being members of the "Bloods" gang and mentioned the use of a .38 caliber pistol as charged in count ten of the indictment. Turner objected to the factual accuracy of the statement identifying co-defendants as members of the "Bloods" gang on the basis that the statement was "hearsay on hearsay." Therefore, the district court was obligated to either make a finding as to the co-defendants' gang membership or state that it was not taking their membership into consideration in sentencing Turner. See, e.g., Edwards, 800 F.2d at 881. However, the district court failed to either make findings concerning Turner's objections or reveal its treatment of the challenged statement.

The government contends that the district court was not obligated to make findings in regard to the challenged statements because they did not refer to Turner. This contention lacks merit. In objecting to the identification of his co-defendants as "Bloods" gang members, Turner expressed a well-founded fear that knowledge of his relationship with gang members could have a bearing on his placement at an institution. See Fed.R.Crim.P. 32(c)(3)(D) House Judiciary Committee Notes to 1983 amendment. More importantly, Rule 32(c)(3)(D) applies where a defendant "allege[s] any factual inaccuracy in a presentence report," not just inaccuracies concerning the defendant. Fed.R.Crim.P. 32(c)(3)(D) (emphasis added). Accordingly, the district court's failure to follow Rule 32(c)(3)(D) by not responding to Turner's objections to statements identifying co-defendants as "Bloods" gang members requires remand for compliance with the rule. See Messer, 785 F.2d at 834.

While objecting to statements referring to the .38 caliber pistol, Turner asserted there was "no evidence that [he] had any knowledge of the existence of the pistol" or "that the pistol was used in any way in the alleged conspiracy." However, the objected to statements were not to the contrary. Indeed, a challenged portion of the presentence investigation report reads in part: "There was no information presented by investigators or informants which would indicate that this [.38 caliber] pistol was carried or displayed by any of the defendants during the various 'crack' cocaine transactions." In short, Turner's objection went to the inclusion of the statements concerning the pistol in the report, not to their factual accuracy. Thus, the district court was not required by Rule 32(c)(3)(D) to respond to this objection at sentencing.

In addition, the district court did not err in failing to delete the challenged portions of Turner's presentence investigation report. Neither due process nor Rule 32 requires a district court judge to be an editor as well as an arbiter of justice. Any concerns a defendant might have about prison officials relying on unfounded, detrimental information in his presentence investigation report should be met by a district court's compliance with Rule 32(c)(3)(D).

3. Application of Sentencing Guidelines

Turner contends that the district court improperly applied the sentencing guidelines because his base offense level was based on the total amount of cocaine involved in the drug transactions charged in his indictment rather than on the amount involved in the count on which he was convicted. Turner also contends that the district court erred because it never found he was involved in the charged drug transactions other than the one for which he was convicted. Consequently,...