(D)  Right to Specific Findings As to Disputed Facts.  If the defendant objects to the accuracy of a specific fact contained in the presentence report, the court must make a specific finding as to each disputed matter, or to confirm that it played no role in choice of sentence.[351]  If the court fails to do so, resentencing is required.[352]  If the court states in writing that it did not rely on a disputed fact, it need not resolve the dispute with respect to that fact.[353]  Any doubt as to whether the court relied on the disputed but undecided fact will normally require resentencing.[354]

                       

[351] Fed. R. Crim. P. 32(c)(1); United States v. Rodriguez-Luna, 937 F.2d 1208 (7th Cir. 1991); United States v. Gerante, 891 F.2d 367 (1st Cir. 1989); United States v. Rantz, 862 F.2d 808, 814 (10th Cir. 1988), cert. denied, 489 U.S. 1089 (1989); United States v. Smith, 844 F.2d 203, 206 (5th Cir. 1988); United States v. Fry, 831 F.2d 664, 667 (6th Cir. 1987).

[352] United States v. Harrison-Philpot, 971 F.2d 234 (9th Cir. 1992) (unresolved dispute concerning quantity of drugs required resentencing); United States v. Jimenez, 928 F.2d 356 (10th Cir.), cert. denied, 112 S.Ct. 164 (1991) (resentencing required where court failed to make finding concerning amount of drugs distributed during a conspiracy, nor did it state it did not rely on the contested fact in selecting sentence); United States v. Jackson, 950 F.2d 633 (10th Cir. 1991) (court should have made record of specific findings concerning quantity of drugs part of record for appeal).

[353] United States v. Funt, 896 F.2d 1288, 1299 (11th Cir. 1990); United States v. Miller, 871 F.2d 488 (4th Cir. 1989) (decision or statement must be in writing).

[354] See United States v. Chaikin, 960 F.2d 171 (D.C. Cir. 1992) (resentence required where court did not make a finding that the disputed fact existed, and did not deny reliance upon it in sentencing); United States v. Montoya, 891 F.2d 1273, 1296 (7th Cir. 1989); United States v. Rosa, 891 F.2d 1071, 1073 (3d Cir. 1989).

First Circuit

POST CON RELIEF - SENTENCE - GROUNDS - DUE PROCESS - RIGHT TO SENTENCE BASED UPON ACCURATE INFORMATION
United States v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. Apr. 9, 2009) ("due process right to be sentenced upon information which is not false or materially incorrect" is violated where the defendant is sentenced based upon a "fact" that is not supported by the record, requiring reversal of the sentence); see United States v. Pellerito, 918 F.2d 999, 1002 (1st Cir.1990); see also Townsend v. Burke, 334 U.S. 736, 740-41, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).