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GONZALEZ v. UNITED STATES

September 19, 1985

RUFO O. GONZALEZ, Petitioner, against UNITED STATES OF AMERICA, Respondent


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge :

The habeas corpus petition of Rufo Gonzalez pursuant to 28 U.S.C. § 2255 raises one question of substance. That is whether his sentence should be vacated and Gonzalez resentences on his conviction following jury trial, because of this Court's failure at the time of sentencing to comply with the 1983 amendments to Rule 32, F.R.Crim.P. *fn1"

 The 1983 amendments to Rule 32, in effect at the time petitioner was sentenced, provide in pertinent part as follows:

 
"(a) Sentence.
 
"(1) Imposition of Sentence. Sentence shall be imposed without unreasonable delay. Before imposing sentence the court shall
 
"(A) determine that the defendant and his counsel have had the opportunity to read and discuss the presentence investigation report made available pursuant to subdivision (c)(3)(A) or summary thereof made available pursuant to subdivision (c)(3)(B); ....
 
"* * *
 
"(3) Disclosure
 
"(A) At a reasonable time before imposing sentence the court shall permit the defendant and his counsel to read the report of the presentence investigation exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinions which, if disclosed, might seriously disrupt a program of rehabilitation; or sources of information obtained upon a promise of confidentiality; or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons. The court shall afford the defendant and his counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleging factual inaccuracy contained in it."
 
* * *
 
"(D) If the comments of the defendant and his 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 of the Parol Commission."

 The record in this case demonstrates non-compliance by this Court with the Rule. The Court did not determine, by directly questioning Gonzalez, whether or not he had read the presentence report prepared by the Probation Department. That omission violated Rule 32(a)(1)(A). Secondly, although as appears infra the Court stated that it did not take into consideration in sentencing certain disputed aspects of the presentence report, the Court did not append a written record of that determination to the presentence report. That omission violated Rule 32(c)(3)(D). Those omissions, as the Government contends and as petitioner gracefully acknowledges, were inadvertent.

 In point of fact, the record on the present petition makes is clear that Gonzalez had not read the presentence report prior to sentencing. He attempted to read it, about a month before he was sentenced, but ran afoul of a local Probation Department rule which denies a defendant access to his presentence report unless he is ...


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