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United States v. Katzin

argued: February 24, 1987.

UNITED STATES OF AMERICA, APPELLEE
v.
KATZIN, HARRY A/K/A "PORKY" APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Crim. No. 85-00123-01.

Author: Becker

Before: WEIS, BECKER and HUNTER, Circuit Judge.

Opinion OF THE COURT

BECKER, Circuit Judge

When a defendant disputes facts included in a Pre-Sentence Investigation report (PSI), Rule 32(c)(3)(D) of the Federal Rules of Criminal Procedure requires a sentencing court to resolve those disputes or to determine that it will not rely on the disputed facts in sentencing.*fn1 The court must then append to the report a record of these findings or determinations before the Probation Office sends the report to the Bureau of Prisons or to the United States Parole Commission.*fn2

In this case, we must decide whether Fed. R. Crim. P. 35(a) grants a district court jurisdiction to correct a sentence allegedly imposed in violation of these requirements. We conclude that it does. Then, turning to the merits, we must consider whether Rule 32(c)(3)(D) requires the district court to provide a prisoner a hearing when a U.S. Probation Officer, after sentencing, provides information directly to the Parole Commission that was not included in the PSI. The information provided here, involving the amount and purity of methamphetamine distributed by the petitioner, is necessary for calculation of the prisoner's parole guidelines. Although we think that the better practice is for Probation Officers to include all information necessary to calculation of parole guidelines in the PSI so that defendants will have a full opportunity to challenge potentially prejudicial information, we conclude that the direct provision of information to the Parole Commission does not violate Rule 32.

Finally, we must decide whether the district court should have resolved disputed facts relevant to the defendant's parole guidelines because it had structured the sentence in reliance on a guideline range considerably below that projected in the Parole Commission's preliminary assessment. We conclude that no such findings were necessary inter alia, because under the facts of this case, the district court's denial of the Rule 35 motion clearly reflects the opinion that even the different guidelines should not alter the sentence. We therefore affirm the district court's denial of the Rule 35 motion.

I. Facts and Procedural History

Harry Katzin was convicted by a jury on June 10, 1985 of conspiracy to distribute and two counts of distribution of methamphetamine. The Probation Office prepared a PSI describing the official version of the offense and estimating the range of incarceration under the Parole Commission's guidelines at 20-26 months. The PSI, however, provided no information about the amount of methamphetamine involved in the offenses or its purity. The district court held a sentencing hearing pursuant to Rule 32(c)(3)(A). Through counsel, Katzin objected to two relatively minor statements in the PSI. The sentencing judge declared that he would not rely on these statements, however, and he instructed Katzin to try to work out corrections of these claimed inaccuracies with the government before the PSI was sent to the Bureau of Prisons or Parole Commission. Apparently, the district court's nonreliance satisfied Katzin, for he did not pursue this matter after the hearing.

The court then announced its sentence. The court noted the parole guideline range of 20 to 26 months, but stated, "I think that the amount of jail time here should end up . . . around four years." Determined to "structure[]" the sentence "around that basis," the court provided for a sentence of three consecutive four year terms plus a total of six years of special parole. This would make Katzin eligible for parole in four years. On appeal of the underlying conviction, this court summarily affirmed.

After sentencing, the Parole Commission requested the probation office to provide information not included in the PSI about the amount and purity of the methamphetamine. The information was necessary for the Commission to determine Katzin's guidelines. A probation officer replied with a letter relating the prosecutor's estimate that Katzin "was moving between 5 and 20 pounds per month of methamphetamine," on the basis of which the Commission provided Katzin with a "preliminary parole assessment" of 52 to 64 months. So far as we know, however, Katzin's first parole hearing has not taken place, so that the Commission may not yet have determined which guidelines actually apply to Katzin.

Because of the substantial difference between the guidelines projected by the PSI and those preliminary assessed by the Parole Commission, Katzin filed a Rule 35 motion requesting a reduction of sentence. He also requested a hearing to rebut the accusations contained in the probation officer's letter. The district court denied both forms of relief and refused reconsideration. Katzin now appeals.

Katzin makes two related claims. He first argues that Rule 32(c)(3)(D), added in 1983 to prevent inaccurate factual information in the PSI from prejudicing a defendant after sentencing, reflects a desire that information provided by probation officers to parole and prison officials be filtered through a judicial proceeding. If probation officers may provide information to parole officials after sentencing without judicial screening, asserts Katzin, they will effectively subvert this important reform.

Katzin also submits that the district court should have held a hearing because the court had relied on the estimated guidelines in structuring its sentence. Essentially, Katzin contends that if the sentencing judge relied on a mistaken parole estimate, he must reconsider his sentence; he must therefore hold a ...


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