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UNITED STATES v. SANDERS

July 8, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMPSON B. SANDERS, Defendant.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Petitioner Thompson Sanders has filed a motion for findings of fact pursuant to Fed. R. Crim. P. 32(c)(3)(D), and for modification of sentence under 28 U.S.C. § 2255. For the reasons set forth below, the motion is denied.

 I.

 Sanders, a former Chicago Board of Trade member, and three codefendants were charged in an eleven-count superseding indictment, returned on July 5, 1988. Count I charged Sanders with conspiring to commit wire fraud in violation of 18 U.S.C. § 1343, and conspiring to violate 7 U.S.C. §§ 6h and 13. Counts II through VI charged Sanders with acts of wire fraud in violation of 18 U.S.C. § 1343. Count VII charged Sanders with interstate transportation of property acquired by means of fraud in violation of 18 U.S.C. § 2314. Finally, Counts VIII through XI charged him with violations of 7 U.S.C. §§ 6h and 13 by aiding and abetting a co-defendant's misrepresentation that the latter was an agent of a member of a contract market in handling an order.

 Following a jury trial, on September 14, 1988, Sanders was convicted on all counts. On November 3, 1988, this court sentenced Sanders to the custody of the Attorney General for a period of six years on Count I, and fined him $ 250,000 on Count II and $ 50,000 on Count III. On the remaining counts, we sentenced Sanders to a period of five years probation, to be served subsequent to his imprisonment. Because we initially had imposed a term of incarceration in excess of the statutory maximum, on February 27, 1990, the court resentenced Sanders to a period of five years in the custody of the Attorney General on Count I.

 The gravamen of Sanders' present pro-se motion is that the Presentence Investigation Report ("PSI") employed to sentence petitioner contained erroneous statements of fact, and that his counsel's failure to correct these misstatements constitutes ineffective assistance of counsel.

 II.

 As a threshold matter, we will discuss the vehicles of redress a defendant may have in the event his or her PSI contains factual inaccuracies. Ideally, a defendant who believes the PSI contains erroneous factual statements should voice this contention prior to, or during, sentencing, thereby allowing the court to resolve these matters pursuant to Rule 32 of the Federal Rules of Criminal Procedure. As amended by the Sentencing Reform Act, Rule 32 "provides for focused, adversarial development of the factual and legal issues relevant to determining the appropriate Guidelines sentence. Burns v. United States, 111 S. Ct. 2182, 2185, 115 L. Ed. 2d 123 (1991). To that end, Rule 32(c)(3)(D) declares:

 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.

 Fed. R. Crim. P. 32(c)(3)(D) (1991). Rule 32(c)(3)(D) serves a dual purpose, ensuring (1) that a defendant receives a fair sentence based on accurate information, and (2) that a clear record of the resolution of disputed facts is available. United States v. Musa, 946 F.2d 1297, 1307 (7th Cir. 1991); United States v. Engs, 884 F.2d 894, 896 (5th Cir. 1989). In order to establish a Rule 32(c)(3)(D) violation warranting resentencing, a defendant must show "that (1) allegations of inaccuracy were before the sentencing court and (2) the court failed to make findings regarding the controverted matters or a determination that the disputed information would not be used in sentencing." United States v. Eschweiler, 782 F.2d 1385, 1389 (7th Cir. 1986). In the instant case, however, Sanders raises the purported inaccuracies in his PSI over two years after his second sentencing hearing. In the absence of such allegations at the time of sentencing, Rule 32(c)(3)(D) could not have been violated. *fn1" And, regardless of whether the PSI genuinely contained factual inaccuracies, in the absence of a challenge at sentencing, this court lacks jurisdiction under Rule 32 to correct such misstatements of fact postsentencing. See United State v. Giaimo, 880 F.2d 1561, 1563 (2d Cir. 1989); Engs, 884 F.2d at 895; United States v. Sarduy, 838 F.2d 157, 158 (6th Cir. 1988); cf. United States v. Hart, 922 F.2d 613, 615 (10th Cir. 1990) (reviewing denial of Rule 32 motion where defendant's counsel challenged the PSI's factual accuracy at sentencing).

 As Sanders correctly notes, independent of Rule 32, a defendant possesses a federal constitutional right to be sentenced on the basis of accurate information. See Townsend v. Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255, 92 L. Ed. 1690 (1948); Musa, 946 F.2d at 1306; United States v. Harris, 558 F.2d 366, 375 (7th Cir. 1977). To the extent that Sanders can "raise grave doubt as to the veracity of the information and show that the court relied on that false information in determining [his] sentence," he must be resentenced as a matter of due process. See Eschweiler, 782 F.2d at 1387; United States ex rel. Welch v. Lane, 738 F.2d 863, 865 (7th Cir. 1984). Generally, as a means of redress, Sanders may seek resentencing for such a constitutional violation by employing either Fed. R. Crim. P. 35, or 28 U.S.C. § 2255. Rule 35(a) of the Federal Rules of Criminal Procedure, prior to its amendment effective December 1, 1991, *fn2" granted the sentencing court jurisdiction to correct a sentence imposed in an illegal manner within 120 days after sentencing. Sanders, however, has waited over two years from the date of his second sentencing hearing to petition this court for relief. As such, his only method of recourse must come in accordance with the dictates of § 2255.

 Pursuant to § 2255, a federal prisoner claiming that his sentence was imposed in violation of the Constitution or the laws of the United States may, at any time, "move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255 (1992). As a collateral attack on the criminal judgment, however, claims brought pursuant to § 2255 must overcome the obstacle of the procedural default doctrine. As stated by the Seventh Circuit in Nevarez-Diaz v. United States, 870 F.2d 417, 422 (7th Cir. 1989), "a defendant may not raise on collateral attack even constitutional claims that could have been raised earlier, unless the defendant can demonstrate cause for and prejudice resulting from the omission." See also United States v. Frady, 456 U.S. 152, 167, 102 S. Ct. 1584, 1594, 71 L. Ed. 2d 816 (1982); Davis v. United States, 411 U.S. 233, 243-45, 93 S. Ct. 1577, 1583-84, 36 L. Ed. 2d 216 (1973). It is undisputed that prior to this petition, Sanders has not raised before any court any objections, constitutional or otherwise, to the factual statements contained in the PSI. Sanders' current claim could have been raised on three earlier occasions: (1) in a presentencing motion under Fed. R. Crim. P. 32; (2) in a motion for correction or reduction of sentence under Fed. R. Crim. P. 35; and (3) on direct appeal from his conviction. Consequently, Sanders must show cause for and demonstrate prejudice from his failure to pursue those opportunities.

 Sanders attributes his previous failure to challenge the purported factual inaccuracies contained in the PSI to ineffective assistance of counsel. Indeed, it is well established that performance constitutionally ineffective under the standard of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), as opposed to mere ignorance or inadvertence, constitutes "cause" for a procedural default. See Murray v. Carrier, 477 U.S. 478, 492, 106 S. Ct. 2639, 2648, 91 L. Ed. 2d 397 (1986). Finding the record sufficiently conclusive ...


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