United States v. Paul Roberson

917 F.2d 1158 UNITED STATES of America, Plaintiff-Appellee, v. Paul ROBERSON, Defendant-Appellant. No. 89-10049. United States Court of Appeals, Ninth Circuit. Oct. 23, 1990. Before ALDISERT * , TANG and SKOPIL, Circuit Judges. ORDER 1 After review of appellant's petition for rehearing, we have decided to reconsider our decision in this case. Accordingly, the petition for rehearing is granted. Upon reconsideration, we affirm the district court's denial of Fed.R.Crim.P. 35 relief, but remand for compliance with the technical requirements of Fed.R.Crim.P. 32. Our prior opinion, United States v. Roberson, 896 F.2d 388 (9th Cir.1990), is amended by deleting parts IV and VI and substituting the following language: IV. 2 Roberson argues that the district court violated Rule 32 by failing either to make a finding as to controverted factual matters or to state that it would not consider certain disputed information in the presentence report. The text of former Rule 32 provides in relevant part that: 3 (D) If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or…

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…

ORDER

After review of appellant’s petition for rehearing, we have decided to reconsider our decision in this case. Accordingly, the petition for rehearing is granted. Upon reconsideration, we affirm the district court’s denial of Fed.R.Crim.P. 35 relief, but remand for compliance with the technical requirements of Fed.R.Crim.P. 32. Our prior opinion, United States v. Roberson, 896 F.2d 388 (9th Cir.1990), is amended by deleting parts IV and VI and substituting the following language:

IV.

Roberson argues that the district court violated Rule 32 by failing either to make a finding as to controverted factual matters or to state that it would not consider certain disputed information in the presentence report. The text of former Rule 32 provides in relevant part that:

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

We recently declared that district courts must strictly comply with the provisions of Rule 32. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc). In light of that directive, we agree that Roberson’s counsel’s comments at sentencing constitute an allegation of a “factual inaccuracy in the presentence investigation report” that required the district court *1159…