United States v. Angel Fernandez-Angulo

with whom GOODWIN, Chief Judge, joins, concurring:

I concur in the judgment remanding Fernandez’s claim that he received multiple punishments for engaging in a single transaction to the panel for further consideration in light of United States v. Palafox, 764 F.2d 558 (1985). I write separately only because the en banc opinion offers no explanation for our remand to the original panel, which has already considered the Palafox issue at length. United States v. Fernandez-Angulo, 863 F.2d 1449, 1451-55 (9th Cir.1988). If I were a member of that panel, I would be puzzled as to why the en banc panel found the treatment of the Palafox issue deficient. The opinion simply offers no explanation.

I offer as an explanation the fact that the panel relied on the “difference of several hours between the distribution of the sample and the consummation of the underlying transaction” in determining that the drug transaction, which involved the same people and place, could be separated into two transactions. Id. at 1452-53. The panel assumed that appellant left the scene of the transaction for three hours. Id. at *1518 1451. However, the evidentiary record fails to show how far the appellant went…

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…

dissenting:

I dissent from the majority opinion.

It is clear that the sentencing judge did not comply with the command of Rule 32(c)(3)(D). Because factual inaccuracies in the presentence report (PSR) were alleged, the sentencing judge was under a duty to resolve that allegation or make a determination that the controverted matter will not be taken into account in the sentencing. She did not do so. In addition, the rule requires that a written record of the aforesaid findings and determinations be appended to, and accompany, any copy of the presentence report made available to the Bureau of Prisons or the Parole Commission. The sentencing judge neglected to follow this requirement of the rule as well.

We took this case en banc to consider what to do about such acknowledged errors. The panel decided that the case should be remanded to the sentencing judge to insure compliance with Rule 32(c)(3)(D), that is to hold a hearing to resolve the disputed matter, or to determine that such matter was not considered in the sentencing decision and to append its findings and deliberations to the copy of the PSR transmitted to the Bureau of Prisons or the Parole Commission.

It must be…

897 F.2d 1514 58 USLW 2603 UNITED STATES of America, Plaintiff-Appellee, v. Angel FERNANDEZ-ANGULO, Defendant-Appellant. No. 87-3068. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted Aug. 16, 1989. Decided March 13, 1990. Paul S. Petterson, Asst. Federal Public Defender, Portland, Or., for defendant-appellant. Kenneth C. Bauman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee. Appeal from the United States District Court for the District of Oregon. Before GOODWIN, Chief Judge, WALLACE, FARRIS, PREGERSON, POOLE, NELSON, CANBY, NORRIS, BEEZER, WIGGINS and LEAVY, Circuit Judges. BEEZER, Circuit Judge: 1 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. 2 Angel Fernandez-Angulo pled guilty to two counts of a superseding indictment charging him with violations of 21 U.S.C. Sec. 841 . A presentence report was prepared and…