United States v. Angel Fernandez-Angulo , 897 F.2d 1514 ( 1990 )

BEEZER, Circuit Judge:

We take this case en banc to address the interpretation of Fed.R.Crim.P. 32(c)(3)(D). The question before us concerns what that Rule requires of a sentencing court when a defendant challenges the accuracy of matters contained in the presentence report and what relief should be granted if the district court failed to comply with the requirements of the Rule at the time of sentencing.

Angel Fernandez-Angulo pled guilty to two counts of a superseding indictment charging him with violations of 21 U.S.C. § 841. A presentence report was prepared and distributed to the court and counsel. The presentence report stated that Fernandez-Angulo was experienced in the drug trade and that he had initiated the negotiations leading to the crimes to which he pled guilty. Fernandez-Angulo challenged the factual accuracy of these statements. At sentencing, the district court failed to: 1) resolve the disputed factual matters; 2) state that the contested factual matters would not be taken into account in sentencing the defendant; and 3) append to the presentence report a written record of any findings or determinations which resolved the controverted matters. Fernandez-An-gulo filed a timely notice of appeal. A panel of this court filed an opinion reported at 863 F.2d 1449 (9th Cir.1988). We ordered that this case be reheard en banc. United States v. Fernandez-Angulo, 875 F.2d 1451 (9th Cir.1989). We affirm the district court in part; remand to the district court for resentencing and remand to the panel for consideration of other claims made in the petition for rehearing.

I

Fed.R.Crim.P. 32(c)(3)(D) provides:

If the comments of the defendant and defendant’s 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.

Fernandez-Angulo appealed, arguing that resentencing is required when the clear command of the Rule is not followed by the district court at the time of sentencing. The panel disagreed. In Part III, the panel held that Rule 32 errors need not result in resentencing if, on remand, the judge “states in a subsequent order that he or she did not rely on any disputed allegations when imposing a sentence and ensures that a written record is appended to the presentence report.” United States v. Fernandez-Angulo, 863 F.2d 1449, 1457 (9th Cir.1988). We disagree.

Strict compliance with the Rule is required. We have consistently and frequently stated that when the district court failed to make the required Rule 32 findings or determinations at the time of sentencing, we must vacate the sentence and remand for resentencing.¹ We approve of those cases and hold that when the defendant challenges the factual accuracy of any matters contained in the presentence report, the district court must, at the time of sentencing, make the findings or determinations required by Rule 32.² If the district court fails to make the required findings or determinations, the sentence must be vacated and the defendant resentenced.

We note that there is a split in the circuits on this question.³ We believe that the bright-line rule we adopt imposes no onerous burden on the district courts and is most faithful to the language of the Rule. In pertinent part, Rule 32(c)(3)(D) requires “a determination that no such finding [resolving the controverted matter] is necessary because the matter controverted will not be taken into account in sentencing” (emphasis added). We conclude that this language forecloses postsentencing compliance with the Rule. Permitting remand, often long after sentencing, to ensure that the Rule was complied with at the time of sentencing would, in effect, permit the Rule to read: “a determination that no such finding was necessary because the matter controverted was not taken into account in sentencing.” We reject such a reading of the Rule.

II

We next address what the Rule requires when a district court complies with the substantive requirements of the Rule, but fails to append to the presentence report the appropriate findings or determinations resolving the controverted matters.⁴ We hold that such a technical violation of the Rule is a ministerial error which does not require resentencing.⁵ The technical error must, however, be corrected by ordering the district court to append to the pre-sentence report the required findings or determinations. United States v. Knockum, 881 F.2d 730, 732 (9th Cir.1989) (holding that ministerial error of failing to append Rule 32 findings or determinations will not permit habeas relief because the error may be remedied by ordering the district court to attach the sentencing transcript); U.S. v. Gattas, 862 F.2d 1432, 1435; (10 Cir.1988) United States v. Eschweiler, 782 F.2d 1385, 1390-91 (7th Cir.1986); United States v. Castillo-Roman, 774 F.2d 1280, 1284-85 (5th Cir.1985).

III

Appellant urges us to vacate his sentence. During oral argument and in his supplemental brief filed in response to an en banc court order, Fernandez claims that he received multiple punishments for engaging in a single transaction. He claims his sentence is contrary to our holding in United States v. Palafox, 764 F.2d 558 (9th Cir.1985). We remand this claim to the panel for further consideration.

IV

The sentencing record in this case reveals that the district court did not comply with substantive requirements of Rule 32. Accordingly, we hold the sentence must be vacated and the defendant resentenced in compliance with the Rule. We vacate Part III of the panel opinion. We also remand to the panel for further consideration of Fernandez’ multiple punishment claims pri- or to remand to the district court.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.

1 . United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir.1989); United States v. Baron, 860 F.2d 911, 920 (9th Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 1944, 104 L.Ed.2d 414 (1989); United States v. Sharon, 812 F.2d 1233, 1234 (9th Cir.1987); United States v. Edwards, 800 F.2d 878, 883 (9th Cir.1986); U.S. v. Messer, 785 F.2d 832, 834 (9th Cir.1986); United States v. Stewart, 770 F.2d 825, 832 (9th Cir.1985), cert. denied, 474 U.S. 1103, 106 S.Ct. 888, 88 L.Ed.2d 922 (1986); United States v. Petitto, 767 F.2d 607, 609-10 (9th Cir.1985).

In United States v. Salas, 824 F.2d 751 (9th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987), we allowed a Rule 32 error to be corrected in a postsentencing Rule 35 proceeding. Salas is overruled in light of our holding in this case.

2 . If the district court states that the controverted matters will not be considered in imposing sentence, the sentencing record must unambiguously reflect that the district court placed no reliance on the controverted matters. If the record is ambiguous in this regard, the sentence must be vacated and remanded for resentenc-ing. We thus expressly approve of our opinion in Baron, 860 F.2d at 920.

3 . Compare United States v. Serino, 835 F.2d 924, 932 (1st Cir.1987) and United States v. Bradley, 812 F.2d 774, 782 (2d Cir.), cert. denied, 484 U.S. 832, 108 S.Ct. 107, 98 L.Ed.2d 67 (1987) (holding resentencing is not always required) with United States v. Peterman, 841 F.2d 1474, 1483 (10th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 783, 102 L.Ed.2d 774 (1989) and United States v. Lawal, 810 F.2d 491, 492-93 (5th Cir.1987) and United States v. O'Neill, 767 F.2d 780, 787 (11th Cir.1985) (holding that resentencing is required).

The Second Circuit has restricted Bradley to de minimis violations of the Rule. United States v. Arefi, 847 F.2d 1003, 1008 (2d Cir.1988).

4 . The district court may comply with this requirement in any manner which fairly indicates the resolution of the controverted matters. See, e.g., United States v. Ibarra, 737 F.2d 825, 828 n. 2 (9th Cir.1984) (district court may append a form on which its findings or determinations are recorded); United States v. Travis, 735 F.2d 1129, 1132-33 (9th Cir.1984) (district court may append defendant's objections and portion of the sentencing transcript indicating compliance with the Rule).

5 . Accordingly, we overrule our contrary holding, on this specific point, in Petitto, 767 F.2d at 610.