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State v. Steen8/18/2000
adopt facts contained in a presentence investigation report without inquiry, if those facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence. See United States v. Puig-Infante, 19 F.3d 929, 943 (5th Cir. 1994). A defendant's rebuttal evidence must demonstrate that the information contained in the presentence investigation report is materially untrue, inaccurate or unreliable, and mere objections do not suffice as competent rebuttal evidence. See United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999), cert. denied, 120 S.Ct. 1238 (2000); 26 Moore's Federal Practice § 632.02 (3d ed. 1997).
[ ] In this case, Myers reported that Steen "has received numerous charges of Minor in Possession of alcohol and that he has had alcohol related accidents in which the charges were either reduced or dropped altogether." Steen's attorney argued this statement did not "jibe with the offenses listed by the probation officer." But the probation officer listed two possession of alcohol offenses, in which the dispositions were "not listed" and "dismissed," and a driving under the influence charge which was reduced to a reckless driving charge. The discrepancy, if any, is insignificant. The remainder of Steen's objections consisted of his attorney's characterization of Myers' statements as "lies," and the attorney's written explanation of the child custody dispute and his client's version of the incidents. The controversy essentially focused on the credibility of Myers versus the credibility of Steen.
[ ] On this record, we believe the trial court would have been legally justified in either rejecting Myers' statements in the presentence investigation report and accepting Steen's version, or accepting Myers' statements and rejecting Steen's version. Alternatively, if the trial court did not consider Myers' disputed statements in sentencing, Steen suffered no harm. Steen's sentence is in the permissible range. Under these circumstances, resentencing is not appropriate. See United States v. Santana-Camacho, 931 F.2d 966, 969-70 (1st Cir. 1991).
[ ] However, the trial court has not made a written record of its findings and attached it to the presentence investigation report where it could prove useful to either Steen or to the State Parole Board. We therefore remand for the trial court to prepare a written record of its findings on the controverted statements and attach it to the presentence investigation report. See Cruz, 981 F.2d at 619; Santana-Camacho, 931 F.2d at 970.
[ ] We add the following caveat:
When a district court confronts a challenge to the accuracy of information in a presentence report, it should explicitly state for the record either its finding regarding the challenge, or its decision not to take the matter controverted into account when imposing sentence. By adhering to this modest requirement, the district courts can help reduce unnecessary appeals based on the parties' misunderstanding of the record. United States v. Ibarra, 737 F.2d 825, 827-28 (9th Cir. 1984) (footnote omitted).
V.
[ ] The criminal judgments are affirmed, and we remand for the limited purpose of preparing and attaching findings to the presentence investigation report.
[ ] William A. Neumann, Mary Muehlen Maring, Carol Ronning Kapsner, Dale V. Sandstrom, Gerald W. VandeWalle, C.J.
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