*1 CUDAHY, Before EDWARDS* ESCHBACH, Judges. Circuit Edwards, Jr., sitting by designation. George Clifton Honorable Circuit, Appeals for the Sixth States Court of *2 1170 seized,
CUDAHY,
directly
and
Judge.
amount
the court never
Circuit
asked the
whether he had seen
challenging appellant’s sen-
appeal
any objection
or whether
he had
a
tence, imposed
pled guilty to
after he
accuracy
to the factual
charging him with
information
one-count
Following defense counsel’s statement
mari-
to distribute
possession with intent
above,
§
quoted
personal
Rone made a
state-
841(a)(1),
of 21
juana in violation
U.S.C.
attempting
present mitigating
to
fac-
ment
in
opportunity,
first
at least
presents the
government
recommended
tors.
then
circuit,
gov-
the new rules
to consider
this
years
court a sentence of four
of
investigations, Fed.R.
presentence
erning
$10,000
and a fine
based
incarceration
of
(D).
(c)(3)(A)
32(a)(1)(A)
and
Crim.P.
seriousness
crime in
upon apply
did not
Because the district court
the fact
even if the defendant had
of
correctly,
rules
we vacate
these new
responsible
only
patches
for
the two
been
and remand to the district
sentence
admitted,
he
to which
for new
pounds
would have still been 520
$750,000.
I
with a street
of over
years impris-
Rone
court sentenced
to three
Rone, pled
Defendant-appellant, Dennis
special parole
and an
onment
additional
1983,
7,
guilty
October
to a count
on
years. During
term of three
the sentenc-
cultivating
separate patches
two of
ten
hearing,
following
court made the
marijuana in the
National Forest.
Shawnee
comments:
dis-
is a veteran
an honorable
Rone
with
There
of mari-
substantial amount
prior
history. At
charge and no
criminal
juana
suppose
in
I
involved
this.
guilty plea proceedings,
Rone admitted
anybody’s speculation
extent it’s
some
having
patches but
cultivated two of the
the total amount
have been
that would
responsibility
any others. The
denied
for
street,
gone
from it had
realized
it
however,
it was
government,
stated
neighbor-
it looks like it
but
was
show,
aggravation
of sen-
prepared
____
maybe
I
hood
million dollars
tencing,
that Rone
for at
bring
question
it
of the number
patches.
[the
noted the
eight
least
The court
my
it is
patches
up because
dispute,”
guilty
involved]
accepted
“substantial
peo-
impression
talking
different
with
plea,
ordered a
and set
value of
proximately 1090
ing.
the date November
Sinsemillia cannabis
sentencing hearing,
Plea
$1,646,000
Information at
pounds
were seized.
plants weighing
defense
21,1983,
indicated
and with a street
14-17.
counsel at-
for sentenc-
that 856
At the
ap-
there was a certain amount of
tion involved
talked
ple involved
edge I have
fairly sophisticated
with
'!*
you,
about the
this;
[*]
this
individual____
the overall knowl-
matter
I think
matter is that
[*]
sophistica-
that have
you
[*]
are
strongly
tempted
clarify
point that Rone
I feel
one of the real bad
in this
responsibility
things
going
two of the
that we
claimed
have
country
drugs. And I
approximately
is the business of
patches,
contained
3;
once,
Hearing
it—if I
I have
plants (Disposition
at
have said
have said it
450 to 500
times,
15).
coun-
that I think
Plea
Information at
Defense
said it several hundred
stated,
country to
pre-
thing
bring
that will
“[ajnything
then
else
one
sel
situation, if
fully
drug
agree
its knees could be this
... we
additions,
stopped.
gets
out of hand
if it’s not
completely ... and have no
say that
corrections,
points
why
say
do I
that?
I
any other
Now
deletions or
Hearing
primary
one of
reasons
Disposition
because
clarification.”
you
doing
going
I am
to do with
never raised
me
what
The defense counsel thus
marijua-
may have some
in this case is that it
issue
the value of
still, seized,
somebody
And
objection to the
effect on
else.
na
other than his
big purpose
one
Court has
includes the
to be sentenced on the
sentencing,
biggest
if
purpose,
not the
is basis of accurate information. United
many
ways you
deterrence.
Tucker,
443,
States v.
447,
404 U.S.
probably
enough.
say-
suffered
I am not
S.Ct.
(1972);
(A) determine that
the defendant
opportu-
and his counsel have had the
II
nity to read and
presen-
discuss the
defendants,
including
Convicted
...;
investigation report
tence
plead
those
guilty,
process
who
have a due
sentencing procedure
to a fair
correct,
Appellant
has submitted with his
brief
then the value of the
Schultes, Jeffrey
was,
fact,
affidavit of Richard Evans
Pro-
according
seized
to the information
Biology
University.
fessor of
at Harvard
affidavit,
$32,700,
closer
than to
only approximately
affidavit states that
2% of
(1090
$1,600,000.
concept
plant
that the entire
uprooted plants
the total
pulled
ground
from the
does not constitute sale-
pounds)
marijuana.
constituted
"useable”
correct,
intuitively
able
seems
al-
Therefore, even if one assumes
defend-
though
obviously
there
remain
several
plants
ant was
for all 856
seized and
disputes which the district court will be in a
approximate
per
$1500
street value of
position
better
to evaluate than we.
(a
pound
defendant)
point
disputed by
also
accuracy
sentencing
(c)
Investigation.
to ensure
informa-
Presentence
*
*
*
*
*
tion.
(3) Disclosure.
(a)(1)(A) requires
Amended subsection
im-
(A)
time before
At a reasonable
court “determine that
permit
the court shall
posing sentence
the defendant and his counsel have had the
and his counsel to read
opportunity to read and discuss the ...
report of the
investí-
report.”
Advisory
*4
any alleged
inaccuracy
,
con-
to
factual
.
.
gation report____
change
This
is consist
in '
tained
the amendment of subdivision
ent with
,
s.
*
*
*
(c)(3)
providing for disclosure of the
...
(D) If the comments of the defend-
_
report
to
defendant and his coun-
both
testimony
or
or
ant and his counsel
t„
gd
(e
origi.
mphasis in
„
,
,
,
,
,
„
by
„
.
them
information introduced
n mi ^
,,
„
nal).
study
The Fennell and Hall
concluded
^
allege any
inaccuracy
„ ,
,
,,
m
,
,
,r
.
the extent of disclosure under
that
_
report
presentence investigation
,
,
,
or the
.
.
^adequate
rule
often
and that
Prior
thereof,
part
summary
report
or
Padding
necessary
is
form of
some
Judicial
shall, as to each matter con-
the court
at
achieve full disclosure.
Id.
troverted,
(i)
finding
make
as to the
specific
The
mention the amended rule of
(ii)
allegation, or
a determination
“defendant
his counsel” was
both the
and
finding
necessary
no such
is
because
and the amended subsec
thus deliberate
not
the matter controverted will
be
time,
tion,
imposes
first
the affirma
for the
A
taken into account
obligation
tive
findings
of such
and
written record
defendant,
whether the
in addi
appended
shall be
to determine
determinations
copy
presen-
counsel,
accompany any
report
has read the
tion to
investigation report
thereafter
tence
they
report
have reviewed the
to
whether
to the Bureau of Pris-
made available
gether.
„
,
,
,
\,n., „.
,
,,
.
(cid:127)
ons or the Parole Commission.
32(c)(3)(A)involves three
Amended Rule
amendments, the avail-
Before the 1983
changes
prior rule: dis-
principal
ci0gUre
from the
presentence reports varied mark-
ability of
report
is not limited to those
edly among the
districts.
different
made;
request
is
dis.
situations which
provided
is
the defendant
closure
both
SVví?
32(c(3)(D),
32(c)
32(a)(1)(A)
3)(A)
or
while
defenge coung
is re.
and disdosure
,,
,
,.
„
,
,
only required
permit
.
.
„
,
quired
7
In order to
sentencing,
...
.
time before
a reasonable
f
,
or defense counsel to read
defendant
.
,
,
promote accuracy
presen-
m the
.
T
In
report upon request.
suggesting
,
under the amended
,
,,
.
tence
rules’
rePort
Advisory
changes, the
Committee
permitted to review the
is to be
extensively
empirical study
lied
erroneous informa
an<^to contest
rePort
tion. To
Hall,
at
Fennell and
Due Process
Sentenc-
re
accomplish
purpose,
Legal Analysis
ing:
Empirical
An
sufficiently before
must be disclosed
P°rt
Reports in
Presentence
the Disclosure of
and resolu
permit
assertion
Courts,
93 Harv.L.Rev.
Federal
inaccuracy
permit
and to
tion of claims of
(1980).
study found that the extent
addi
make submissions of
the defendant to
reports
of these
nature of disclosure
informed
to make
information and
tional
among the dis-
only
not
inconsistent
were
comments on the
often insufficient
trict courts but also too
emphasize
port
hearing.
Notes thus
the role of the
before the
precisely
It is
in contrast even with that of
this reason that
specifi
amended rules
counsel,
reviewing
report
so as to
cally place upon
sentencing judge
“significantly
the likelihood that
responsibility
reduee[]
ascertaining
whether
discovered,
false statements will
be
[not]
defendant had the
to read the
the content of the
much of
report
and of
a record on this
report
ordinarily
outside the
will
be
knowl-
requirements
issue.2 The
of the rule were
(c)(3)(D),
edge of counsel.”
Subsection
thus not
satisfied
fol
entirely
provision
is an
new
concern-
lowed
this case.
obligation
the district court’s
to make
government
asserts
even if the
findings regarding
they
contested facts if
defendant did
not see the
before the
sentencing,
are relied on in
can
be
hearing, his counsel’s oral statements dur-
truly meaningful
rendered
if amended sub-
ing hearing
were sufficient
to alert him
(c)(3)(A)
section
full effect.
portions
which he now
The record in the
case as to
claims were inaccurate. Listening
parts
the extent of disclosure of the
recited
the hearing is
unclear,
primary
and one of the
enough.
specifically requires
The rule
rule,
purposes
particularly
of the amended
and defense counsel
(a)(1)(A),
require
subsection
is to
the court
shall permitted
read at a
to establish a clear record on this issue.
reasonable
time
imposition
before
Defense counsel had access to the
*5
requirement
sentence.
This
of the rule
sentencing hearing,
some time before the
simply
was
not satisfied.
although
exactly
it is unclear
when before
The Notes make
hearing
report
merely
clear that
was available. The
mak-
show,
ing
report
record
not
upon
does
defendant
available
denies,
now
that he had
request,
many
access to the re-
as did
district courts before
upon
2. The dissent relies
defense counsel's use
requires
issues which amended Rule 32
be
during
sentencing hearing
record,
of the term "we”
clearly established in the
that a remand
to establish that the defense counsel at least
required.
report
discussed the
with the defendant. The
given
We note that if the defense counsel was
defendant, however,
up
was incarcerated
adequate opportunity
report
to review the
day
sentencing,
attorney apparently
and his
report’s apparent
but did not contest the
inaccu-
during
never visited him
that time. The use of
racies,
performance might appear
his
to fall
person plural pronoun
persuasive
the first
is not
professional
below the minimum standards of
attorneys
loosely
because
often use the word
for
hand,
competence. On the other
if counsel used
Further,
notes,
various reasons.
as the dissent
misleadingly
the term "we”
so as to effect a
statement,
most, only
defense counsel's
at the
(as
rights
waiver of his client’s
the dissent im-
suggests
report
that he discussed the
with the
plies), when he had not in fact discussed the
Again,
defendant.
requires;
this is not all that the rule
client,
misrepresentation
with his
such a
rather,
requires
that the defendant
competence.
would also cast doubt on counsel’s
opportunity
be
report
a reasonable
read
Court,
Supreme
in Strickland v. Wash-
sentencing judge
and that the
determine
— U.S.-,
ington,
104 S.Ct.
80 L.Ed.2d
complied
whether the rule has been
with.
(1984), recently
analysis
articulated the
availability
Our comments
applied
to determine ineffective assistance of
appellant's
are based on the
brief and
standard,
Judged
appel-
counsel.
under that
argument
ap-
statements
pellee’s description
oral
as well as the
allegations
support
lant’s
seem to
a belief that
argument
at oral
of the usu-
apparent incompetence
defense counsel’s
affect-
(at
procedures
time)
al
followed
least at that
ed the outcome in the
case. These alle-
pnfcsentence reports.
government
has not
gations might thus seem to warrant at
a
least
attempted
deny appellant’s
to refute or
asser-
hearing
remand for a
on the issue whether
availability
tions about the
of the
appellant’s
right
sixth amendment
to effective
through
than
its reliance on defense counsel's
assistance of counsel has been violated. How-
sentencing hearing.
use of the word "we” at the
ever,
resentencing
of our remand for
government
Neither has the
refuted or denied
solely
on the basis of the
followed
appellant’s explanation of the manner in which
under Rule we do not remand for considera-
government
calculated the total street value
tion of the ineffectiveness of
issue. Nei-
counsel
marijuana
precisely
of the
involved.
It is
be-
attempt
ther do we
to decide that issue.
many
disputes,
cause there are
so
involv-
enacted,
addition,
sentencing judge’s
were
is not ade-
the amendments
comments
Instead,
in-
relying
the amended rule was
make it
that he was
quate.
clear
clearly high
a more
give
determining
the defendant
value of the
tended
report.
opportunity
type
to read the
impos-
defined
of sentence which he was
many
recognition that
of the facts
ing.
the exclu-
are within
included
In the interest both of
knowledge of
defendant—and
sive
carrying
a clear record and of
out
counsel—led to the
that of the defense
amendments,
and intent of the
terms
there
(a)(1),
of amended subsection
formulation
fore,
require
yet
the rules
simple
definite
an af-
imposes on the district court
which
procedure. The district court at the sen
duty
the defendant
firmative
to ensure that
tencing hearing
directly
need
ask the de
opportunity
had an
to read
has
questions
fendant
three
he
—whether
hearing
time before the
is held.
reasonable
opportunity
or she has had an
to read the
rights
personal
are
As with other
report, whether the defendant and defense
would,
counsel
discussed the
course,
to waive this
to read
be able
challenge
whether the defendant
wishes
waiver, however,
report.
Such
must
ques
facts
This brief
unequivocal.
be clear and
tioning of the defendant would be some
appeal
claims on
that the
The defendant
analogous
questioning
what
of a
seized,
total value
upon
entry
of a
presentence report,
presented in the
guilty plea, although
situa
overvalued,
supra n. 1.
grossly
see
simpler
tion is much
and the extent of
primarily
error was
the result of the fact
questioning would be much more limited.
report figures are
based not mere
require only
The rules
that the court make
ly
weight
parts
useable
sentencing hearing,
a record
marijuana plant
but on the
which reflects that the defendant has had a
roots,
plant,
including
entire
stems and
realistic
to read and discuss
cannot,
dirt. We
without the benefit of an
objections.
and to raise
*6
evidentiary hearing, determine the correct
marijuana
By placing
value of the
seized. The
responsibility
the
defend
ant, however,
burden,
court,
has
clarify
met the
which
the amended rule should
the
record,
imposed
would have been
even under the
particularly in a case like this in
precedent
old rules and our
United which the defendant was unable to make
Harris,
raising grave
of
custody throughout
States
doubt
bond and was
held
reliability
accuracy
about the
usually
the time when the
would
given
presentence report.3
value
in the
In
Appellant’s
have been available.
serious
3. The dissent
impliedly
appellant
highly questiona
criticizes the
was based on
of
information
having
allegations
reliability.
appropriate remedy
not
raised
for
his
in the sen-
ble
The
is ordi
here,
tencing
narily,
court under
Fed.R.Crim.P. 35.
Har-
as
a remand for further
375-76,
ris,
appellant
inquiry
resentencing,
F.2d at
the
had
also
at least in a situation
challenged
presen-
knowingly
not
the inaccuracies in his
in which the defendant has not
appeal
apparently
voluntarily
right
challenge
tence
until his
and had
his
the
waived
Nevertheless,
brought
requirement
separate
no Rule
motion.
as
There is no
of a
Harris,
(direct
per-
ap
stated in
"several
we
considerations
Rule 35 motion. See id. at 375-76
Weston,
626,
peal);
suade us
case,
under the circumstances of this
United States v.
448 F.2d
(direct
justice
Cir.1971)
appeal;
would not be disserved if defendant
631-34
no indica
denied,
filed),
simply
opportunity
deny
is
afforded the
that Rule
tion
35 motion was
cert.
allegations
the
rebut
...
re-
404 U.S.
(1972).
92 S.Ct.
situation
than he would be
subject to rehabilitation
the defendant was
activity for which
inal
rule, however,
also otherwise.
convicted. The
never
type of information
apply to the
intended to
ESCHBACH,
dissenting.
Judge,
Circuit
and to other situations
disputed in this case
government might have been
majority holds that this case must be
significant-
facts and thus
careless with the
resen-
to the district court for
remanded
and nature of
exaggerated the extent
ly
so,
tencing.
doing
In
it concludes that the
Particularly in
culpability.
the defendant’s
assuring
district court erred
neither
case,
the defendant has abso-
this
where
presentence report
access to his
record and admitted
lutely
prior
no
criminal
findings
making specific
about the ex-
nor
sentencing hearing that he has
during the
act number of
fields for which
aspects of
familiarity with the technical
no
responsible.
the defendant was to be held
4),
(DispositionHearing at
legal system
that the de-
majority
also concludes
purposes which
rules and the
the amended
fendant has met his burden of
scope,
full
inspired them should be
materially
relied on
that the district court
specific prescriptions should be
and their
imposing
information in
sentence.
false
followed.
v.
The sentence is therefore to the district court the matter is remanded holding, majority primari relies In so the defend- with instructions to resentence ly the defendant’s alle unsubstantiated ant. gations, made for the first time this undisputed court. While it is that the de EDWARDS, Jr., CLIFTON GEORGE attorney fendant’s read de Judge, concurring specially. Circuit that he never saw the re fendant claims opinion port attorney never visited him Judge Cudahy’s his I concur rehearing period the interim between the en manding case for on sen- try guilty plea and the that the new amendments of his tence. I believe Further, hearing. majority suggests— hearing on sentence should governing the apparent no basis in the record1—that interpreted requiring the District with personally was not available at least Judge address the Defendant he had reasonable time before thus learn from him that has read and understand time to attempt was made to No course, may, no new rehearing shed allegations to the these change in may cause no the sen- instance under Fed.R.Crim.P. 35. the first clear to me that the 1983 tence. But Papajohn, 701 F.2d United States See 32(c)(3)(A)) (See changes Rule mandate our (8th Cir.1983); v. Ma United States ably for the reasons outlined remand 704, (2d Cir.1978), donna, 582 F.2d Judge Cudahy’s opinion. denied, 439 U.S. 99 S.Ct. cert. (1979). the defendant done the L.Ed.2d 34 Had my opinion the so, to review his claims sentencing hearing to be we would be able subject *8 speculation. more than the and have on the basis of personally addressed basis of the can be said on the dispute of fact resolved What any relevant however, record, following. Defense is the testimony, if within the trial through counsel, representing only one necessary, will who was it is found discretion judge’s defendant, reality stated: appearance and the strengthen the was reasonable or not only explanation was held. Whether this possible in the record The 1. report circumstances is a factual determina- majority’s is under the statement is for the competent sentencing hearing days we are not to make. tion that dated four before the allegations not; report, whether these are true or pre-sentencing to the In reference peculiarly information is within such only point of clarification we one knowledge of the defendant. pre-sentenc- in the Anything else .... fully and ... we agree with report challenge Rone’s to the valuation of the completely. marijuana is not based on claimed ex- part valuing in added.) interprets pertise on his narcotics. On majority
(Emphasis contrary, he relies in this court either an plural as use of the counsel’s professor biology of a Harvard misleadingly to affidavit he intended that indication See ante that valuation. rights or as to contest of his client’s effect a waiver presented was not I This evidence incompetence. be 1171. of counsel’s evidence below, the court nor did the defendant dis- representations are counsel’s lieve that assigned pute the value plausibly susceptible equally more — —and below, although he was when his interpretation that counsel and court, attorney, open repeated in In the valua- had reviewed the given report govern- and the deed, make no sense tion counsel’s statements report attorney ment stated his lesser estimation at least discussed the unless he had marijuana for client, report was on the which Rone since most of the based with his Dispo- See actually responsibility. family situ claimed with the defendant’s concerned Hearing, sition 3-5. of his arrest.2 ation and the circumstances out, Moreover, points majority Perhaps simple inquiry, such as the one dispute the defendant now raises with only majority requires, now would assure the facts contained developed demonstrating that a record is raise before the port which he did not also compliance with Rule 32. But on the us, court is his contention that record before where there is no clear price market government overvalued the noncompliance indication of with the disclo- remand, marijuana. support rule, of its provisions agree of the I sure cannot behind majority majority’s holding relies on the rationale with the the district regard. in Rule 32: court erred this amended [Advisory Notes thus Committee] agree majority’s I also cannot emphasize the role of the holding that the defendant has met his counsel, that of contrast even with burden of district reviewing report “signifi- so as materially court relied on false information cantly reduce the likelihood that false [ ] decision. making its discovered, as will statements [not] States v. F.2d much of the content Cir.1977). Relying on the aforementioned ordinarily will be outside court, affidavit submitted de- knowledge of counsel.” only percent claims that two fendant (a Ante at 1173. As the Advisory marijuana plant Committee is valuable contention clear, majority “intuitively man- finds cor- also make the reason for *9 especially the fact that of subsequent to defend- merely states SHORE, arrest, cannabis “856 Sinsemillia BANK the NORTH
ant’s OF Plaintiff-Appellant, v. approximately weighing plants $1,646,000 a street value pounds with Moreover, I do not be- were seized.” ... FEDERAL DEPOSIT INSURANCE on the court’s reliance that the district
lieve Chicago Fritts, CORPORATION; Paul J. shown. report has been figures Director; egional and the North R stating “it looks like value] While [the Bank, Savings Illinois brook Trust maybe a million neighborhood inwas Corporation, nking Ba noted, suppose dollars,” “I judge also anybody's speculation it’s to some extent that would have the total amount as to Conover, Comptroller of the C.T. Curren gone realized had
been James, States; cy E. Paul Disposition Hearing, 5-6. street.... Administrator; Deputy Regional manifestly Northbrook, clear from the district isWhat National Bank of First Association, comments is judge’s Banking Defend National deterring other his concern for he relied on ants-Appellees. drug growers and the “substan- potential 83-2111, Nos. 83-2121 and 83-2179. The ma- seized. tial amount” Appeals, Court of United States again in judge erred jority holds that Seventh Circuit. findings the number failing make about hold- for which he was fields Argued March 28 1984. reading A responsible. ing defendant Sept.5, Decided 19 84. remarks at shows arrested noting that defendant was judge, responsi- which he claimed
in the fields for fields were in the
bility, and that those fields, expressly as the other
same area denial of more ex-
discredited defendant’s
tensive involvement: meant more to the
I think it would have complete you if had made a
Court [sic] may say everything. you Now
breast just you have. You
you have and
haven’t convinced the Court.
Disposition Hearing, 6-7. I do not be-
lieve, majority, that we need does the lines” to find that the between
“read[ ] rejected defendant’s
district court contention. , „ For , T above, expressed I can- the reasons . . ... í-c i T I maiority opinion. respectful-
not lom the ... issen (cid:127)
^ Notes Com- gation---- The court shall afford the mjttee state that this subsection now im opportu- counsel an defendant and his poses „upon the court the addi. and, m nity comment on the determining obligation of tional , , , , ,, ,, court, . to introduce the discretion ’ , , „ counsel have had an defendant and his . . ,. , , ., , testimony .relating or other information . . , , , ,i , . . to read the mvesti-
Notes
Notes rect”). op- majority accepts the defend- dating that the defendant be figures ant’s claim that “the are portunity to view the facts, merely weight likely to contain historical based plant parts could useable but on truth of which instance, plant, including many presentence of the entire dispute. For roots, stems, allegations that the defend- and dirt.” Ante at 1174. reports contain simply criminal There is no evidence that the has been involved ant figures sug- manner convict- were derived activity for which he has not been majority: itself gested not know Defense counsel could ed. remarks, case, attorney after his concluded his de- then defendant’s silence If this is not the attorney’s representations is in the face of his inexplicable, fendant himself addressed the court.