Post-Conviction Relief for Immigrants

(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).