Appeal from a sentence imposed by the United States District Court for the Eastern District of New York (Pratt, C.J., sitting by designation) following appellant's conviction upon a plea of guilty to one count of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). Sentence vacated and case remanded.
Lumbard, Kearse and Pierce, Circuit Judges.
Erasmo Oddo appeals from the sentence imposed upon him by the United States District Court for the Eastern District of New York, George C. Pratt, Circuit Judge, sitting by designation, following his conviction upon a plea of guilty to one count of distributing cocaine in violation of 21 U.S.C. § 841(a)(1). Judge Pratt sentenced Oddo to a five-year term of imprisonment followed by three years of special parole, plus a mandatory special assessment of $50. On appeal, Oddo seeks to have this sentence vacated on the grounds that (1) the court failed to comply with Fed. R. Crim. P. 32 with respect to appellant's challenges to the presentence report; (2) the court improperly refused to exclude a witness from the courtroom as required by Fed. R. Evid. 615; and (3) the government failed to prove the allegation in the presentence report that Oddo was the source of the cocaine that was sold to an undercover agent. although we reject most of Oddo's contentions, we find that the presentence report was tainted by one material misstatement. We therefore vacate the sentence and remand the case to the district court with instructions to comply with the requirements of Fed. R. Crim. P. 32 and to resentence the defendant.
Appellant Oddo was arrested on November 4, 1986, together with codefendants Joseph Allo and Anthony Montalvo, following the sale of two kilograms of 96 % pure cocaine to an undercover agent in the parking lot of the shopping center at Roosevelt Field on Long Island, New York. All three defendants' cases were originally assigned to Judge Mishler of the Eastern District of New York. Montalvo cooperated with the government and on January 27, 1987 he pleaded guilty before Judge Mishler to a single-count superseding information that charged him with distributing cocaine in violation of 21 U.S.C. § 841(a)(1).
Allo and Oddo were charged in a two-count superseding indictment with conspiracy to possess and distribute cocaine and with distributing in excess of 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. For scheduling reasons, their cases were transferred to Judge Pratt for trial. However, on March 25, 1987, the date scheduled for their trials, Allo and Oddo pleaded guilty to the lesser included crime of distributing an unspecified quantity of cocaine.
Presentence reports were prepared with respect to all three defendants. The reports related that Allo and Oddo were more culpable than Montalvo and that Oddo was the primary source of the drugs. Oddo challenged various statements in his report, asserting in particular that he played only a minor role in the drug transaction. In order to determine the relative culpability of the three defendants, as well as to resolve challenges to the contents of the reports, Judges Pratt and Mishler held a joint sentencing hearing beginning on August 12, 1987 with respect to all three defendants. After three days of hearings, at which Allo, Montalvo and the undercover agent testified, the two judges independently concluded that, as between the three defendants, Oddo was the source of the cocaine that was sold to the agent.
A. Compliance With Fed. R. Crim. P. 32
Oddo challenged various statements contained in his presentence report. He now asserts that his sentence should be vacated because Judge Pratt failed to make specific findings of fact with respect to those challenges and to append such findings to the report, as required by Fed. R. Crim. P. 32(c)(3)(D). We discuss the controverted statements seriatim.
The report contained the statement that "defendant has provided no cooperation with respect to this investigation." Oddo objected to this statement on the ground that the district court may not enhance a sentence because of a defendant's failure to cooperate with the government, even though it may consider cooperation as a mitigating factor. United States v. Stratton, 820 F.2d 562 (2d Cir. 1987). Judge Pratt specifically responded to this objection, stating on the record that he would not consider Oddo's lack of cooperation in determining sentence. Since the sentencing judge is not required to make any findings when he explicitly disavows any reliance on a controverted statement such as this one, see Fed. R. Crim. P 32(c)(3)(D)(ii), this omission was not a violation of Rule 32. United States v. Navaro, 774 F.2d 565 (2d Cir. 1985) (per curiam).
We agree with Oddo that Rule 32 mandates that the district court append its determination regarding the challenged statement. Nonetheless, this technical violation does not require us to vacate the sentence. United States v. Santamaria, 788 F.2d 824, 829 (1st Cir. 1986); see United States v. Ursillo, 786 F.2d 66, 71 (2d Cir. 1986). Since this omission can easily be cured, we ...