dissenting:

I adhere to Part IV of the opinion as originally filed and reported, see United States v. Roberson, 896 F.2d 388, 391 (9th Cir.1990), but I am willing to accept the discussion in the revised Part IV as an alternative basis for reaching the same result. I disagree, however, with the remand to the district court so “that a copy of a transcript of its oral findings be appended to the presentence report.” This is a pedanticism required neither by procedural rule nor case law.

I.

The majority sua sponte are requiring the district court to bade fealty to what they consider a ukase located in United States v. Fernandez-Angulo, 897 F.2d 1514 (9th Cir.1990) (en banc), and the language of Rule 32 as it existed prior to November 1, 1987. I think that the majority misunderstand the spirit and the letter of what is relevant here; that they misinterpret the spirit of what was said by this court in Fernandez-Angulo (which, incidentally, interpreted the present version of Rule 32 and not the former version applica *1160 ble here); and that they also misconstrue the letter of the former version.

II.

I dissent from the remand requirement for three discrete reasons: (1) By its terms, Rule 32 requires the court’s finding to be appended only to certain copies of the presentence report and not to all copies; (2) because the question of appending a copy of the finding to the presentence report was not raised at the district court level, we may not notice the issue unless the district court’s failure to do so constitutes “plain error,” and under ruling case law of this court the failure to append is not such a gross dereliction as to constitute “plain error”; and (3) if we considered the scenario here to come within a sort of edict laid down in Fernandez-Angulo and if we overcome the hurdle of “plain error,” the staple-the-document requirement should not be afforded retroactive effect.

III.

Our starting point is the applicable version of Rule 32(c)(3)(D), F.R.Cr.P. in effect prior to November 1, 1987:

The language of Fernandez-Angulo must conjoin the language of the Rule. No interpretation of a rule’s words may rise higher than its source. Thus, to grasp the full meaning of the Fernandez-Angulo critical passage requires that we fill an ellipsis by fleshing out the statement with critical portions of the Rule it seeks to enforce. Thus, I read that case to say: “The technical error [of not appending to the copy made available to the Bureau of Prisons] must ... be corrected by ordering the district court to append to the [copy of the] presentence report [thereafter made available to the Bureau of Prisons] the required findings or determinations.” 897 F.2d at 1517 .

This is the only proper meaning that can be gleaned from Fernandez-Angulo because the above quoted passage was anchored in what it described as “what the Rule requires.” Id. Thus, the majority here are absolutely wrong when they state that “Rule 32 also requires, however, that the court’s findings be appended to and accompany the presentence investigation reports.” Rule 32 requires the appending or affixing only to “any copy of the presentence investigation report thereafter made available to the Bureau of Prisons.... ”

The brute fact here is that there is no copy of Roberson’s presentence report that thereafter will be made available to the Bureau of Prisons. Roberson was placed in the custody of the Bureau two years ago. It should be safe to suggest that the Roberson presentence report was sent to the Bureau and, ostensibly, to the Parole Commission at that time. Because the relevant copy of the presentence report here is long gone from the court’s custody, I am at a loss to understand what the district court is expected to do on remand, keeping in mind the Rule’s language that the finding be “appended to and accompany any copy thereafter made available.” Clearly, in ipsissimis verbis the Rule does not require the judge to append the finding to any copy previously made available and then to return the conjugated or mated documents to the court records.

IV.

I doubt very much that at the time of sentencing on September 22, 1988, the district judge understood that he was required to perform a ministerial act that was not mandated until March 13, 1990. The interpretation of the Rule was so unsettled in 1988 that it required an en banc session of this court in 1990 to tell us what it meant. Did this trial judge, as Learned Hand once elegantly put it, “embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time but, whose birth is distant”? 1 I hardly think so.

*1161 Prior to Fernandez-Angulo , it was reasonable to conclude that only the Bureau of Prisons, and earlier, also the Parole Commission, had the right to insist that the staple-the-document ritual take place. I do not think that many district judges believed that such a solemnization was required for all cases since 1983, when Rule 32(c)(3)(D) first was promulgated. I am sure that they did not believe that failure to kiss the book was cause for vacating an order and remanding.

Because the majority extend the requirement not only to sentencing under the present version of the Rule but also to previous versions, the retroactivity spectre visits us here. Retroactivity, of course, was not briefed in this case because the document coupling act was not raised by the appellant. It came about sua sponte by the judges of the majority, and because this precise question was not presented at the district court level, the failure-to-append issue must qualify as plain error for this court to notice it.

V.

To notice an issue on appeal that was not raised before the district judge, this court employs a plain error standard of review. See Fed.R.Evid. 103(d); United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 179 , 107 L.Ed.2d 135 (1989); United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986) (“A plain error is a highly prejudicial error affecting substantial rights.”) (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 , 100 S.Ct. 480 , 62 L.Ed.2d 405 (1979)). Plain error is invoked to prevent a miscarriage of justice or to preserve the integrity and the reputation of the judicial process. Id.; United States v. Bryan, 868 F.2d 1032, 1039 (9th Cir.) (“[rjeversal of a criminal conviction on the basis of plain error is an exceptional remedy, which we invoke only when it appears necessary to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.”) (citations omitted), cert. denied, — U.S. -, 110 S.Ct. 167 , 107 L.Ed.2d 124 (1989). See also Hormel v. Helvering, 312 U.S. 552, 556-57 , 61 S.Ct. 719, 721 , 85 L.Ed. 1037 (1941) (Justice Hugo Black’s statement of the reasons for the plain error rule).

It is difficult to maintain a straight face to believe that failure to attach one court document to another affects substantial rights and is a doctrine of necessitarianism to preserve the integrity and the reputation of the judicial process. I thought that notion went out with the demise of Common Law pleadings and high-button shoes. There is no room at today’s jurisprudential inn for antique pettifoggery.

VI.

Assuming that it is plain error, and that we are permitted to notice it, for this court to afford complete retroactivity to Fernandez-Angulo — even to versions of the Rule that antedated November 1, 1987 — is something that will have a pronounced effect on one of the key factors relating to the retroactivity vel non of any criminal law decision — “ ‘the effect on the administration of justice of a retroactive application of the new standards.’ Solem v. Stumes, 465 U.S. 638, 643 [ 104 S.Ct. 1338, 1341 , 79 L.Ed.2d 579 ] (1984) (quoting Stovall v. Denno, 388 U.S. 293, 297 [ 87 S.Ct. 1967, 1970 , 18 L.Ed.2d 1199 ] (1967)); see Linkletter v. Walker, 381 U.S. 618, 636 [ 85 S.Ct. 1731, 1741 , 14 L.Ed.2d 601 ] (1965).” Allen v. Hardy, 478 U.S. 255, 258 , 106 S.Ct. 2878, 2880 , 92 L.Ed.2d 199 (1986) (per curiam).

What we know as men and women we must not forget as judges. And we know that there are inmates in federal prisons from Danbury, Connecticut to Lompoc, California who file lawsuits to while away their time. The majority’s decision now gives them an opportunity, if not to heckle, at least, to make life more burdensome for sentencing judges. There are many inmates who were sentenced after 1983 and before Fernandez-Angulo was handed down. Because the majority apply what they consider to be the rule retroactively, these inmates will have a splendid opportunity to relieve boredom by filing pro se *1162 complaints to require district courts to reopen closed cases to perform this so-called “ministerial act.”

The district judges in this judicial circuit are very busy. In the 1989 fiscal year alone 34,178 civil cases and 12,672 criminal cases were commenced. 1989 Admin.Off. of U.S. Cts.Ann.Rep. 171, 251 (Tables C and D-l). These able judges do not have the time to take on unnecessary lawsuits. Neither they nor our clerks of court nor our magistrates nor court room deputies nor law clerks have the time to rummage through stacks of old court documents in cases long ago processed and long ago closed and long ago gone.

VII.

With almost thirty years experience as a judge, I am very sensitive to the problems of court administration in this judicial circuit. I have set forth these views in unfortunate prolix only because I recognize that the workloads affecting a hardworking federal judiciary here, on both the trial and appellate levels, are profound. I dislike having the burdens of federal judges increased without good reason, and I am afraid that this case does just that.

Accordingly, I dissent.

. Spector Motor Serv., Inc. v. Walsh, 139 F.2d 809, 823 (2d Cir.1943) (Learned Hand, J., dis *1161 senting), vacated and remanded, 323 U.S. 101 , 65 S.Ct. 152 , 89 L.Ed. 101 (1944).