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United States v. Silver

filed: August 30, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICHARD IAN SILVER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California. D.C. Nos. CR-88-316(B)-TJH, CR-91-229-TJH. Terry J. Hatter, Jr., Presiding

Before: Fletcher, Poole, and Thompson, Circuit Judges.

MEMORANDUM

Appellant Silver appeals the sentences imposed for mail fraud and counterfeiting violations. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1988). We remand for compliance with Federal Rule of Criminal Procedure 32(c)(3)(D). However, we reject the contention that imposition of consecutive Guidelines and non-Guidelines sentences constitutes double punishment.

Silver pled guilty to three counts of mail fraud and one count of possession of counterfeit government obligations. The mail fraud crimes, violations of 18 U.S.C. § 1341 (1988), charged in second superseding indictment No. CR 88-316(B)-TJH, netted Silver perhaps as much as $1.2 million. Silver, a contractor supplying certain low-technology parts to the Department of Defense, certified that his company, Aerotech Industries, had shipped conforming parts that entitled it to payment under the Department's fast payment program. In fact, no such conforming shipments had been made.

After his arrest several years later, police officers executing a search warrant at Silver's home discovered $190,650 in counterfeit United States currency hidden in an air conditioning duct. The government, in information No. CR-91-229-TJH, charged Silver with violating 18 U.S.C. § 472 (1988). The mail fraud (a pre-Guidelines offense) and counterfeiting (a Guidelines offense) cases were consolidated for all purposes following Silver's guilty pleas on April 1, 1991.

The district court sentenced Silver to twenty-one months for the counterfeiting violation, and a total of eight years for the mail fraud crimes, the latter to run consecutively to the former.

I.

Silver contends that the district court's failure to resolve certain alleged factual inaccuracies in the PSR requires remand. We review de novo compliance with Federal Rule of Criminal Procedure 32. United States v. Maree, 934 F.2d 196, 199 (9th Cir. 1991).

Rule 32(c)(3)(D) requires that

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). The Ninth Circuit requires "strict compliance" with the rule's conditions; the sentencing court must either "make a finding as to the accuracy of the challenged factual proposition or . . . indicate that the court is not taking it into consideration." United States v. Garfield, 987 F.2d 1424, 1428 (9th Cir. 1993). The failure to do so requires remand. Id.; see also United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc).

Silver filed a document entitled "Defendant's Position Re Sentencing Factors" setting forth his response to the PSR filed in Case No. 91-229, and his attorney argued at sentencing that Silver wished to have certain "factual corrections" made to that PSR.*fn1 In all, nine areas of concern were identified. The government responded orally at sentencing to all nine. The court agreed with Silver as to two areas, and ordered the offending paragraphs struck from the PSR. It ordered that a section heading ("Pending Charges") be struck. Further, it granted Silver's request for a two-point acceptance of responsibility adjustment. However, as to the other five, the district court failed either to make a finding or to rule that no finding would be necessary because the controverted material would not be considered in sentencing. Instead, apparently agreeing with the government that no factual inaccuracy had been identified, it simply ordered that Silver's attorney's remarks "be transcribed and appended to the Report that goes forward and indeed her entire position paper will go forward together with the Report itself."*fn2

This circuit's interpretation of Rule 32(c)(3)(D), though strict, does permit compliance "in any manner which fairly indicates the resolution of the controverted matters." Fernandez-Angulo, 897 F.2d at 1517 n.4 (emphasis added). At oral argument, Silver's counsel correctly emphasized two unresolved areas of concern; only these require remand.

A. The Name Change. Having related Silver's 1986 name change from Richard Silver to Richard Taylor, the probation officer conveys the ...


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