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United States v. Stout

decided: August 16, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PAUL STOUT, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 621, James B. Zagel, Judge.

Cummings and Coffey, Circuit Judges, and Eschbach, Senior Circuit Judge.

Author: Eschbach

ESCHBACH, Senior Circuit Judge.

The defendant-appellant, Paul Stout, was charged under a four-count information with willful failure to file income tax returns. A jury found him guilty on all counts, and the district court subsequently sentenced him to three-years imprisonment. Shortly after the district court held his sentencing hearing, Stout filed post-trial motions to have his presentence report corrected because it allegedly contained an erroneous offense severity rating. The district court eventually ordered the probation office to delete its estimate of Stout's offense severity rating from the presentence report. The district court, however, refused to hold a hearing to determine what Stout's correct offense severity rating should be.

Stout raises only one issue on appeal. In essence, Stout claims that pursuant to Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure, he has a right to have a fully completed and factually correct presentence report. Thus, he argues that the district court violated Rule 32(c)(3)(D) by refusing to hold a hearing to determine his correct offense severity rating and to enter that rating in his presentence report. For the reasons discussed below, we affix the judgment of the district court.

I

On August 7, 1987, the government filed a four-count information, charging Stout with willful failure to file income tax returns for the years 1981-1984 in violation of 26 U.S.C. ยง 7203.*fn1 A jury convicted him on all four counts. On November 18, 1988, the district court held a sentencing hearing at which Stout and his attorney appeared. At the hearing, in response to the district court's inquiry, Stout's attorney stated that Stout and he had discussed the presentence report at length, and neither of them had any objection to it. The district court subsequently sentenced Stout to three-years imprisonment.

On December 1, 1988, Stout filed a motion to correct the presentence report.*fn2 In his motion, and a later amendment to it, Stout alleged that his presentence report contained an incorrect offense severity rating and that the district court should correct it. The government opposed his motion, arguing that Stout's presentence report contained a correct offense severity rating. On December 14, 1988, before Stout replied to the government's position, the district court denied Stout's motion.

Shortly thereafter, Stout filed a motion for reconsideration of the district court's denial of his motion to correct the presentence report. In his motion for reconsideration, Stout argued that the district court should conduct a hearing so that it could determine for itself his offense severity rating and correct his presentence report. On January 5, 1989, the district court held a hearing to consider Stout's motion for reconsideration. At the hearing, the court declined to determine the accuracy of Stout's offense severity rating in his presentence report. Instead, the court offered to enter an order, drafted by Stout's counsel, stating that a dispute exists over the probation office's estimate of Stout's offense severity rating included in his pre-sentence report and that the Parole Commission should ignore the estimate and make its own determination.

On January 19, 1989, Stout filed yet another motion to correct his presentence report, and the district court held a hearing on the matter that same day. Again, Stout urged the court to determine his offense severity rating and enter that rating in his presentence report on the ground that Stout had an interest in a correct presentence report. The court refused to determine whether his presentence report contained a correct offense severity rating. Instead, the court entered an order which stated that the court did not take the presentence report's offense severity rating into account in sentencing Stout and ordered the probation office to delete its estimate of Stout's offense severity rating from the presentence report. Stout now appeals the district court's decision, claiming that the district court violated Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure.

II

Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure provides:

If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing. 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.

This rule serves two purposes. First, it protects a defendant's right to a fair sentencing hearing. E.g., United States v. Perez, 858 F.2d 1272, 1276 (7th Cir. 1988); United States v. Carmel, 801 F.2d 997, 1000 (7th Cir. 1986). Second, it ensures a clear record of the disposition of controverted facts in the presentence report, e.g., United States v. Ryan, 810 F.2d 650, 657 (7th Cir. 1987); United States v. Reynolds, 801 F.2d 952, 957-58 (7th Cir. 1986), which reduces the likelihood that later decisions ...


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