Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 83 CR 40048 -- James L. Foreman, Judge.
Cudahy, Edwards,*fn* and Eschbach, Circuit Judges. Edwards, Jr., Circuit Judge, concurring specially. Eschbach, Circuit Judge, dissenting.
This appeal challenging appellant's sentence, imposed after he pled guilty to a one-count information charging him with possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1), presents the first opportunity, at least in this circuit, to consider the new rules governing presentence investigations, Fed. R. Crim. P. 32(a)(1)(A) and (c)(3)(A) and (D). Because the district court did not apply these new rules correctly, we vacate the sentence and remand to the district court for new sentencing.
Defendant-appellant, Dennis Rone, pled guilty on October 7, 1983, to a count of cultivating two of ten separate patches of marijuana in the Shawnee National Forest. Rone is a veteran with an honorable discharge and no prior criminal history. At the guilty plea proceedings, Rone admitted having cultivated two of the patches but denied responsibility for any others. The government, however, stated that it was prepared to show, in aggravation of sentencing, that Rone was responsible for at least eight patches. The court noted the "substantial dispute," accepted the guilty plea, ordered a presentence report and set the date of November 21, 1983, for sentencing. Plea to Information at 14-17.
The presentence report indicated that 856 Sinsemillia cannabis plants weighing approximately 1090 pounds and with a street value of $1,646,000 were seized. At the sentencing hearing, defense counsel attempted to clarify the point that Rone claimed responsibility for only two of the patches, which contained approximately 450 to 500 plants (Disposition Hearing at 3; Plea to Information at 15). Defense counsel then stated, "anything else in the presentencing report . . . we agree with fully and completely . . . and have no additions, corrections, deletions or any other points of clarification." Disposition Hearing at 3. The defense counsel thus never raised any issue concerning the value of the marijuana seized, other than his objection to the amount seized, and the court never directly asked the defendant whether he had seen the report or whether he had any objection to the factual accuracy of the report.
Following defense counsel's statement quoted above, Rone made a personal statement attempting to present mitigating factors. The government then recommended to the court a sentence of four years of incarceration and a fine of $10,000 based upon the seriousness of the crime in light of the fact that, even if the defendant had been responsible for only the two patches to which he admitted, the weight of the marijuana would have still been 520 pounds with a street value of over $750,000. The court sentenced Rone to three years imprisonment and an additional special parole term of three years. During the sentencing hearing, the court made the following comments:
There is a substantial amount of marijuana involved in this. I suppose to some extent it's anybody's speculation as to the total amount that would have been realized from it had it gone on the street, but it looks like it was in the neighborhood of maybe a million dollars. . . . I bring it [the question of the number of patches involved] up because it is my impression in talking with different people involved in this matter that have talked with you, and the overall knowledge I have about the matter is that there was a certain amount of sophistication involved in this; and I think you are a fairly sophisticated individual. . . .
I feel strongly that one of the real bad things that we have going on in this country is the business of drugs. And I have said it -- if I have said it once, I have said it several hundred times, that I think one thing that will bring this country to its knees could be this drug situation, if it gets out of hand and if it's not stopped. Now why do I say that? I say that because one of the primary reasons in me doing what I am going to do with you in this case is that it may have some effect on somebody else. And still, the one big purpose that the Court has in sentencing, if not the biggest purpose, is deterrence. In many ways you have probably suffered enough. I am not saying you have; but in many ways you may have. The only way that the Court feels that it can send a message to the community is through, hopefully, others seeing what has happened to you or other people that the court sentences.
Disposition Hearing at 5-8.
Appellant asserts that the presentence report contained a gross exaggeration of the street value of the marijuana.*fn1 Appellant also alleges that the district court clearly relied on the high value of the marijuana given in the presentence report when he stated that, because of the monetary value involved, the defendant appeared to be sophisticated and that he should be made an example to deter others -- presumably other sophisticated drug dealers.
Appellant raises two arguments on appeal: first, that the district court failed to assure him access to his presentence report and an opportunity to dispute material factual inaccuracies contained in the report, and, second, that he was denied effective assistance of counsel during sentencing. Because we vacate the sentence and remand for new sentencing based on the district court's failure to assure the defendant access to his presentence report at a reasonable time before the sentencing hearing, we do not reach appellant's second argument concerning ineffective assistance of counsel.
Convicted defendants, including those who plead guilty, have a due process right to a fair sentencing procedure which includes the right to be sentenced on the basis of accurate information. United States v. Tucker, 404 U.S. 443, 447, 30 L. Ed. 2d 592, 92 S. Ct. 589 (1972); Townsend v. Burke, 334 U.S. 736, 741, 92 L. Ed. 1690, 68 S. Ct. 1252; United States ex rel. Welch v. Lane, 738 F.2d 863, slip op. at 3-5 (7th Cir. 1984). A sentence must be set aside where the defendant can demonstrate that false information formed part of the basis for the sentence. The defendant must show, first, that the information before the sentencing court was false, and, second, that the court relied on the false information in passing sentence. United States v. Harris, 558 F.2d 366, 375 (7th Cir. 1977).
Several provisions of Rule 32(c) of the Federal Rules of Criminal Procedure are intended to protect that due process right by ensuring that the sentence is fair and based on accurate information. Changes amending this rule with respect to presentence investigations became effective August 1, 1983. Three of the amended subsections clarify considerably the role of the sentencing judge in assuring that the defendant and defense counsel have a meaningful ...