Richard Johnson v. United States

SWYGERT, Senior Circuit Judge.

I respectfully dissent. In the circumstances of this case, petitioner Richard Johnson had the right to be sentenced after full compliance with Rule 32 of the Federal Rules of Criminal Procedure. That Rule provides that the sentencing court shall afford the defendant and his counsel the opportunity to read and discuss the presen-tence investigation report before the imposition of sentence and to comment on the report. Section 32(c)(3)(D) provides that if the defendant and his counsel allege any factual inaccuracy in the report, the court shall make a finding whether the report did in fact contain inaccurate information or that no determination on that point is necessary because the controverted matter will not be considered by the court in forming its sentence. The Rule further provides that a written record of such findings and determinations shall be made. In United States v. Rone, 743 F.2d 1169 (7th Cir.1984), this court elaborated upon the Rule, stating: “The district court at the sentencing hearing need directly ask the defendant only three questions — whether he or she had an opportunity to read the report, whether the defendant and defense counsel have discussed the report, and whether the defendant wishes to challenge any facts in the report.” Id. at 1174.

There can be no question that the district court here violated Rule 32 by not inquiring of the defendant and his counsel whether they had discussed the presentence report and whether the defendant wished to challenge any facts in the report. In fact, the record indicates that although his counsel was furnished a copy of the report, the petitioner was not allowed to read it before, sentencing so that he might detect the alleged inaccuracies that he now asserts. Today this court acknowledges that the Rule was not complied with: “Rule 32 was indeed violated, and we find the violation both inexplicable and inexcusable.... If Johnson had appealed from the sentence we would have reversed and directed the judge to comply with Rule 32 and resen-tence Johnson.”

Johnson did not appeal because he was unaware of the alleged inaccuracies until he read the presentence report during a parole hearing while incarcerated. Thereafter, he secured the services of a new lawyer who instituted a section 2255 proceeding.

I agree with the majority that when considering a violation of Rule 32, the grounds for relief under 28 U.S.C. § 2255 are more restrictive than those that can be asserted in a direct appeal. Section 2255 may reach only errors occurring during the sentencing procedure that constitute a “fundamental defect which inherently results in a complete miscarriage of justice” or an “omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).

The purpose of Rule 32(c)(3)(D) is to ensure a fundamental requirement of fair procedure: that a defendant be sentenced on the basis of accurate information. If the district court considers inaccurate information in determining the sentence, an error of constitutional dimension occurs and is cognizable in a section 2255 proceeding. I do not comprehend that the majority takes a contrary view. Indeed, this court in United States v. Eschweiler, 782 F.2d 1385 (7th Cir.1986), specifically held that Rule 32(c)(3)(D) “protects a defendant’s due process right to be sentenced on the basis of accurate information” and, as I interpret our recent decision in Kramer v. United States, 788 F.2d 1229 (7th Cir.1986), a section 2255 proceeding is appropriate in circumstances quite similar to those presented in the case at bar. An earlier decision of this court is to the same effect. Krilich v. United States, 502 F.2d 680, 682 (7th Cir.1974) (“Non-compliance with a statute which has as one of its purposes the effec-tuation of a constitutional right presents an issue of sufficient constitutional dimension to warrant consideration under 28 U.S.C. § 2255.”).

The determinative issue in the instant case is not whether section 2255 may be an appropriate vehicle to remedy a Rule 32 violation in egregious situations, but whether the district judge can cure a defect in the sentencing proceeding by a post hoc determination that the alleged inaccuracies had no role in the fashioning of the sentence.

Although there is authority in this circuit to the effect that the sentencing judge may rely on his memory and rule that he did not rely on inaccurate information, Lawary v. United States, 599 F.2d 218 (7th Cir.1979), that proposition is not without exception. Reversal is required when reliance is “manifest and incontrovertible” from the record even in the face of the court’s disclaimer of reliance. Id. at 227. The converse should be equally true. If nonreliance is not manifest and incontrovertible from the record, reversal should be required despite a disclaimer of reliance. Here the record is far from clear as to what the district judge relied on in imposing sentence. Indeed, the judge in his memorandum decision denying Johnson’s section 2255 petition stated: “[Hjere, it is unclear from the record whether the judge relied on alleged inaccurate information in the sentencing proceeding....” When the question of whether there was reliance on the alleged misinformation contained in the presentence report is admittedly unclear from the record, a determination of nonreliance made by the district court one year after sentencing cannot cure the error. United States v. Harris, 558 F.2d 366 (7th Cir.1977); United States v. Eschweiler, 782 F.2d at 1390 n. 11 (“[Wjhere it is unclear whether the sentencing judge relied on the contested information, resentencing would resolve the matter.”). Only a clear record can allow a judge to state with the requisite assurance that he did not rely on the disputed information in imposing sentence. Absent such support in the record, a belated determination of nonreliance, if permitted, might well result in complete circumvention of the salutary purpose of the Rule.

I would remand for a fresh sentencing.