On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Crim. No. 85-146).
This appeal requires us to construe the mandate of Fed. R. Crim. P. 32(a)(1)(A) that "the court shall.... determine that the defendant and his counsel have had the opportunity to read and discuss the presentence investigation report..." Proceeding pro se, appellant Walter L. Mays challenges a judgment of sentence following a jury trial in which he was convicted of three narcotic offense: conspiracy to import heroin (21 U.S.C. § 763); importation of heroin (21 U.S.C. § 752(a)); and possession of heroin with the intent to distribute (21 U.S.C.§ 846).*fn1 Although appellant presses a number of points on appeal, we consider in any detail only his claims that the district court violated Fed. R. Crim. P. 32(a)(1)(A) and 32(c)(3)(D) in connection with his sentencing.*fn2 Fed. R. Crim. P. 32(c)(3)(D) requires the district court to make findings about the accuracy of statements in the presentence investigation report (PSI) that are challenged by the defense.
Fed. R. Crim. P. 32(a)(1) was amended in 1983 in order to ensure that the defendant and their counsel have had the opportunity to read the PSI prior to sentencing.*fn3 According to the note of the Advisory Committee, the amendment was a response to an empirical study that found "that some form of judicial prodding is necessary to achieve full disclosure." Fennell & Hall, Due Process at Sentencing : An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv. L. Rev. 1613, 1651 (1980). The Advisory Committee deemed disclosure essential not only because of the defendant's interest in an accurate PSI at the sentencing stage but also because the PSI is a critically important document in: (1) the parole release determination of the United States Prole Commission; and (2) the classification decisions of the U.S. Bureau of Prisons. See Fed. R. Crim. P. 32(a)(1); Advisory Committee Note, p. 104. The amended rule seeks to achieve compliance by requiring the sentencing judge to "determine that the defendant and his counsel have had the opportunity to read and discuss" the PSI.
Appellant contends that he did not read the PSI until after sentencing.*fn4 The only record reference to the matter of the sentencing hearing is the following statement by appellant's former counsel:
As I read the presentence report with the Defendant, Your Honor, it accurately reflects what the Government says. It accurately reflects that [sic] the Defendant still says.
(emphasis added). Sentencing transcript, p.3. There is no colloquy on the record between the court and the defendant in which the latter acknowledges reading the presentence report. For this reason, appellant argues that Rule 32(a)(1)(A) has been breached. We disagree. Rule 32(a)(1) provides only that before sentencing "the court shall (A) determine that the defendant and his counsel have had the opportunity to read and discuss the ...report." This is in contra distinction to Rule 32(a)(1)(C), which prescribes that "the court shall...address the defendant personally and ask him if he wishes to make a statement in his own behalf ...." From this difference in drafting, we can conclude only that the drafters of the Rule did not intend to create an absolute requirement that the court personally ask the defendant if he has had the opportunity to read the report and discuss it with counsel. Instead, it appears that the drafters intended that the court need only somehow determine that the defendant has had this opportunity. In this case, the defense attorney's words "as I read the [PSI] with the Defendant" were sufficient to enable the court to determine that the defendant had had the opportunity to read the report with counsel.
In so holding, we differ with the Seventh Circuit, which has construed 32(a)(1)(A) to impose an affirmative duty upon the court to ask the defendant directly whether he or she "has had an opportunity to read the report, whether the defendant and defense counsel have discussed the report and whether the defendant wishes to challenge any facts in the report," United States v. Rone, 743 F.2d 1169, 1174 (1984).*fn5 We do, however, believe that it is the better practice for trial courts to address the defendant directly in order to establish that he or she has had the opportunity to read the PSI and to discuss it with counsel. This simple practice will avoid unnecessary challenges and help to ensure fairness in the sentencing procedure. Familiarity with the PSI is very important to fairness because, as noted, the PSI is the critical document not only in the sentencing process, but also in the deliberations of the Parole Commission and the Bureau of Prisons.*fn6
Appellant also alleges that the district court violated Fed. R. Crim. P. 32(c)(3)(D)*fn7 by failing to make findings about the accuracy of statements in the PSI that were challenged by the defense. This contention is patently incorrect. See sentencing transcript, pp. 7-9. We do note, however, that although the district court made all the necessary findings, it failed to append the sentencing transcript*fn8 to the presentence investigation report. We shall therefore remand solely for the ministerial purpose of having the court attach ...