Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 83 CR 570--William T. Hart, Judge.
Before WOOD, JR., CUDAHY, and RIPPLE, Circuit Judges.
WOOD, JR., Circuit Judge.
This case started out in July, 1983, as a one hundred and sixteen count indictment charging nineteen defendants with a conspiracy to distribute cocaine, and with other related racketeering and income tax offenses. However, the issues in this appeal relate only to the sentencing procedures involving four of the defendants.
Defendants Baker and Holmes entered pleas of guilty to certain counts, and defendants Sosa and Mesa were found guilty of certain charges in a jury trial. All four defendants were sentenced on July 20, 1984.*fn1 After sentencing, each of the defendants contended on appeal that the district court failed to comply with Fed. R. Crim. P. 32.*fn2 Baker complained that the district judge did not determine that his counsel and he had had the opportunity to read and discuss the presentence investigation, as required by Rule 32(a)(1)(A). Baker did not challenge any contents of the presentence report. Holmes, Sosa, and Mesa each alleged that the district judge had failed either to make factual findings regarding disputed matters in the presentence report or to make the determination that the controverted items would not be taken into account in sentencing as required by Rule 32(c)(3)(D).
Before the defendants' appeal was heard the government filed a "Motion to Remand to District Court for Clarification of the Record at Sentencing" which was allowed on March 28, 1985, over the opposition of the defendants. The appeals were therefore "remanded to the district court for clarification of the record at sentencing." Upon remand the district court conducted further proceedings and entered additional findings. These additional remand proceedings have generated additional issues.
Although there is a common pattern relating to the sentencing of each defendant which we consider to be defective, we shall briefly review each sentencing. The central problem is the district court's use and treatment of the individual presentence reports in the sentencing process.
At the time of his original sentencing Baker did not challenge any information contained in his presentence report. The government spoke, among other things, about Baker's role in the enterprise and his lack of cooperation, and questioned Baker's claim in the presentence report that his family was of the utmost important to him. Defense counsel made one passing reference to the presentence investigation, which he said suggested that Baker deliberately left facts out in what was to have been a cooperative effort by Baker with the government.
At the conclusion of the statement of counsel, the trial judge asked Baker if he had anything to say in his own behalf. Baker made a one-sentence acknowledgment that he had done wrong, but pointed out that he had been a model citizen the past two years. The trial judge, not mentioning the presentence report, then imposed the sentence.
On remand the sentencing situation developed further. The trial court found the record to be unclear as to whether Baker actually had read the report prior to sentencing although Baker had had the opportunity to do so. However, on remand Baker claimed he had not read the report prior to sentencing. The probation officer could only say he had encouraged Baker to read it. The trial judge asked both Baker and his counsel if they had now read the presentence report. Counsel responded that he had, but Baker responded that he had not until after sentencing while he was in prison. Baker was then directed by the court to read the presentence report forthwith. Counsel questioned why Baker was to read the report now as the remand was only to clarify the circumstances at the time of the original sentencing. After Baker read the report in open court, the trial judge asked if there were any objections to it. Defense counsel renewed her objection that the proceeding exceeded the scope of the remand, but the objection was overruled. Defense counsel then proceeded to challenge various items in the probation report. Baker claimed that there were eight discrepancies: for example, that the amount of cocaine he was directly involved with was much less than stated in the report; that his claimed prior employment was verifiable; that the reported prior arrest was later found to be a mistake and he was released; that his family contact was much better than shown; and that his "career" was not in drugs. There were other objections to similar aspects of the presentence report.
The trial judge reviewed the report made when Baker's guilty plea had been accepted and noted that he had clearly advised Baker and his counsel that the probation report would later be available and should be reviewed. The trial judge concluded the proceedings by leaving the original sentence in place with the explanation that his procedure for purposes of rendering a sentence was to rely primarily on the proffer by the government and the written plea agreement together with the recommendation made by the probation officer. The trial judge therefore explained he considered it unnecessary to make any ...