United States v. Harold A. Space , 325 F. App'x 801 ( 2009 )


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  •                                                               [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    APRIL 28, 2009
    No. 08-15416                   THOMAS K. KAHN
    Non-Argument Calendar                   CLERK
    ________________________
    D. C. Docket No. 07-00005-CR-JTC-3
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    HAROLD A. SPACE,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________
    (April 28, 2009)
    Before BIRCH, HULL and WILSON, Circuit Judges.
    PER CURIAM:
    Harold Space appeals the district court’s refusal to redact a factual statement
    from his pre-sentence investigation report (“PSI”). On appeal, Space argues that
    the district court did not properly address his argument that the factual statement in
    paragraph 40 of his PSI was unsubstantiated and unduly prejudicial, in violation of
    Federal Rule of Criminal Procedure 32(i)(3) as well as his constitutional due
    process rights.1 Space also asserts that the district court’s failure to address his
    argument is extremely prejudicial because it will affect decisions that the Bureau of
    Prisons (“BOP”) makes about him and could even result in his civil confinement to
    an indefinite term as a sexually dangerous criminal.
    “We review de novo legal questions concerning the Federal Rules of
    Criminal Procedure.” United States v. Spears, 
    443 F.3d 1358
    , 1361 (11th Cir.
    2006) (per curiam). Federal Rule of Criminal Procedure 32(i)(3) requires a district
    court at sentencing to make a determination as to a disputed fact in a PSI,
    providing that it “must--for any disputed portion of the presentence report or other
    controverted matter--rule on the dispute or determine that a ruling is unnecessary
    either because the matter will not affect sentencing, or because the court will not
    consider the matter in sentencing. . . .” Fed. R. Crim. P. 32(i)(3)(B); see also
    United States v. Lopez, 
    907 F.2d 1096
    , 1101 (11th Cir. 1990) (interpreting the
    predecessor to Rule 32(i)(3) and providing that “when a defendant challenges a
    1
    Paragraph 40 of the PSI recounted a brief encounter between Space and 13-year-old
    male that occurred in 2001 on a street in Binghampton, New York. There were no charges filed.
    2
    factual assertion in a PSI, the court must either make a finding as to the allegation
    or determine that no such finding is necessary because the matter controverted will
    not be taken into account in sentencing”). For any finding that the district court
    makes under Rule 32(i)(3)(B), the sentencing court “must append a copy of the
    court’s determinations under this rule to any copy of the presentence report made
    available to the Bureau of Prisons.” Fed. R. Crim. P. 32(i)(3)(C); see also 
    Lopez, 907 F.2d at 1101
    (“In either case, a ‘written record of such findings and
    determinations shall be appended to and accompany any copy of the presentence
    investigation report thereafter made available to the Bureau of Prisons or the Parole
    Commission.’”) (citation omitted). The district court must strictly adhere to the
    dictates of Rule 32(i)(3) “because the rule helps ensure that future decisions about
    a defendant’s penal treatment are based on a fair and accurate PSI.” 
    Lopez, 907 F.2d at 1101
    .
    Here, the district court failed to comply with Rule 32(i)(3). First, while it
    denied Space’s request to remove paragraph 40 from the PSI, the district court
    failed “to make a finding as to the accuracy of the challenged factual proposition or
    to determine that no reliance will be placed on that proposition at the time of
    sentencing.” F ED. R. C RIM. P. advisory committee’s note (1983 Amendments).
    Second, the district court failed to append a copy of its determination to the PSI, in
    3
    violation of its obligation under Rule 32(i)(3)(C).
    We note, however, that because the disputed factual statement had no
    harmful effect on Space’s sentence, there is no need to vacate his sentence.2
    Accordingly, we remand this case back to the district court to comply with the
    pertinent procedures.3
    REMANDED.
    2
    At sentencing before the district court, Space did not re-raise his objection to paragraph
    40 until after the district court imposed sentence. Moreover, on appeal, Space does not even
    request resentencing. See Br. of Appellant at 15 (requesting “this Court to remand this case to
    the district court with direction to redact the content of paragraph 40 of the pre-sentence report
    or address the [sic] Mr. Space’s objections to that paragraph in accordance with the dictates of
    Rule 32 and due process”).
    3
    In a similar case where the district court “failed to make a finding as to [the
    defendant’s] factual challenge to the PSI or to make an express determination that no finding
    was necessary,” we gave the following instructions on remand:
    The district court must append to [the defendant’s] PSI either its
    factual finding as to the disputed factual matter or its express
    determination that no finding is necessary because it did not rely on
    the matter in sentencing. If the district court makes an express
    determination that it did not rely on the disputed factual matter in
    sentencing, then due process is not implicated and resentencing is
    unnecessary. Of course, resentencing will be necessary if the district
    court determines that any of the information upon which it relied in
    sentencing was materially inaccurate.
    See Shukwit v. United States, 
    973 F.2d 903
    , 905 (11th Cir. 1992) (per curiam) (footnote omitted).
    4
    

Document Info

Docket Number: 08-15416

Citation Numbers: 325 F. App'x 801

Filed Date: 4/28/2009

Precedential Status: Non-Precedential

Modified Date: 1/12/2023