IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-2484
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KATHY SUE PIAZZA,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(April 9, 1992)
Before JONES, DUHÉ and WIENER, Circuit Judges.
WIENER, Circuit Judge.
Defendant-Appellant Kathy Sue Piazza appeals the sentence
imposed following her conviction, pursuant to her plea of guilty,
on one count of misprision of a felony, namely, the escape and
attempted escape of one David Phillip Ischy, in violation of
18 U.S.C. §§ 4 and 751(a). Specifically, she complains that the
district court failed to comply with Rules 11 and 32(c)(3)(D),
Federal Rules of Criminal Procedure, and that she received
ineffective assistance of counsel. Finding that the district court
strictly and completely complied with Rule 11, we affirm Piazza's
conviction pursuant to her guilty plea; and finding that the
district court's articulation regarding the inapplicability of a
contested fact in the Presentence Investigation Report (PSR) to
Piazza's sentence constituted substantial compliance with Rule
32(c)(3)(D), we affirm her sentence as well. Finally, we find that
Piazza's complaint of ineffective assistance of counsel is not
properly before this court.
I
FACTS
Initially, Piazza and Ischy were charged in a one-count
indictment for conspiring to effect Ischy's escape from federal
custody. That one-count indictment was superseded twice. Finally,
a criminal information was brought charging Piazza with misprision
of a felony by concealing the escape attempt. Piazza entered into
a plea agreement with the government in which she pleaded guilty to
the criminal information in exchange for the dismissal of the
original indictment and both superseding indictments.
Piazza was re-arraigned on February 13, 1991, at which time
the district court accepted her plea of guilty. A Presentence
Investigation Report (PSR) was prepared. Piazza filed written
objections to that portion of the PSR which showed that she had
been convicted of possession of marijuana. After determining from
its colloquy with the probation officer who prepared the PSR that
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the disputed drug conviction had not figured in the calculation of
Piazza's sentence, the district court pretermitted resolution of
this factual dispute. Piazza was sentenced to six months of
imprisonment to be followed by a one-year term of supervised
release.
Piazza's counsel sought to withdraw and filed an Anders brief
raising all the three issues mentioned above. As another panel of
this court denied counsel's withdrawal based solely on the district
court's alleged violation of Rule 32 and therefore did not address
in depth the merits of the other two claims, we now address all
three issues.
II
ANALYSIS
A. Knowing and Voluntary Plea of Guilty
To determine if Piazza's plea of guilty was accepted by the
court in compliance with Rule 11, her re-arraignment must be
measured against the standard established by this court in United
States v. Dayton, 604 F.2d 931, 943 (5th Cir. 1979) (en banc),
cert. denied, 445 U.S. 904 (1980).
What is necessary is that the trial court, given
the nature of the charges and the character and
capacities of the defendant, personally participate
in the colloquy mandated by Rule 11 and satisfy
himself fully that, within those limits, the
defendant understands what he is admitting and what
he consequences of that admission may be, as well
as that what he is admitting constitutes the crime
charged, and that his admission is voluntarily
made.
Id. A review of Piazza's re-arraignment proceedings confirms that
the district judge's explanations and questions to Piazza were a
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model of clarity and comprehensiveness. The judge determined that
Piazza had two years of college, was without any mental defect and
was not under the influence of any type of narcotic at the time of
her plea. The district court asked counsel's opinion as to
Piazza's competence to enter a knowing plea.
The district judge carefully questioned Piazza as to her
understanding of the specific facts involved in the offense, and
she expressly acknowledged that she understood that she was charged
with misprision of a felony for concealing Ischy's attempt to
escape from prison. The court advised Piazza that the offense was
punishable by up to three years in prison and a $250,000 fine as
well as a one-year term of supervised release and a mandatory
special assessment. The court also informed Piazza that she had a
right to plead not guilty and proceed to trial aided by the
presumption of innocence, but that she would waive those rights if
she made a guilty plea. Piazza repeatedly indicated that she
understood each consequence of her plea of guilty. Responding to
the district court's questioning, Piazza acknowledged that she was
not subjected to duress in making her plea and that she had
received no promises or assurances of the sentence to be imposed or
even a guarantee of the terms of the plea agreement.
There is no indication anywhere in the record that Piazza did
not make a knowing and voluntary plea of guilty after being fully
informed of the charges and the consequences of the plea. See
Dayton, 604 F.2d at 939. As such, Rule 11 was satisfied
completely.
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B. Failure to Make Findings on Disputed Facts
Piazza contends that the district court violated Rule
32(c)(3)(D) by failing to make findings regarding disputed facts.
If a defendant asserts, with specificity and clarity, that anything
within the PSR is incorrect factually, then the sentencing judge
must make, as to each controverted matter:
"(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." If the
sentencing judge "fails to make the
requisite finding or determination or if
the finding or determination is
ambiguous, the case must be remanded for
resentencing."
United States v. Hurtado, 846 F.2d 995, 998 (5th Cir.), cert.
denied, 488 U.S. 863 (1988) (quoting Rule 32(c)(3)(D) and United
States v. Garcia, 821 F.2d 1051, 1052 (5th Cir. 1987)).
This rule protects the defendant from being sentenced on
inaccurate information and creates an accurate record of the
factors on which the district court relied during sentencing. In
addition, the written record addressing each objection is important
because officials may consider information in a PSR when making
correctional determinations, including the place of the defendant's
incarceration and her relationship with correctional agencies after
she is released from prison. United States v. Burch, 873 F.2d 765,
767 (5th Cir. 1989); United States v. Manotas-Mejia, 824 F.2d 360,
368 (5th Cir.), cert. denied, 484 U.S. 957 (1987). A failure of
the district court to comply with this rule may be raised for the
first time on appeal. Manotas-Mejia, 824 F.2d at 368.
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Here we are confronted with Piazza's allegation that the
district court committed reversible error by failing to rule on her
controversion of the PSR's allegation that Piazza had been
convicted for possession of marijuana. She filed written
objections and argued the point at the sentencing hearing. In its
brief to this court the government concedes that (1) Piazza's
objections were made with sufficient specificity and clarity to
trigger Hurtado, and (2) the district court's failure to make an
express Rule 32(c)(3)(D) finding on this factual dispute requires
that Piazza's sentence be vacated and the case remanded for
resentencing. See Hurtado, 846 F.2d at 998. Perhaps if the
government had devoted less time to waxing poetic in its brief and
more to analyzing the transcript of the sentencing hearing, it
would not have been so quick to concede the need to vacate and
remand.
Rule 32(c)(3)(D) is written in the disjunctive. When the
defendant disputes a fact contained in the PSR, the district court
must articulate either (1) a finding as to the disputed fact, or
(2) the court's determination that such a finding is not necessary
because the disputed fact will not be taken into account in
calculating the sentence. As to the controverted fact of Piazza's
marijuana conviction, the court conducted a colloquy with
government counsel, defense counsel and Ms. Norris, the probation
officer who prepared the PSR. After discussing the marijuana
conviction and the question of whether the name Janice Gobel had
been an alias used by Piazza or was in fact a roommate who
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possessed the marijuana in question, Ms. Norris told the court
"Further, [the conviction] has no bearing on the calculation of the
guideline." The court then inquired "[the conviction] has no
bearing on the calculation of the guideline?", to which government
counsel responded, "That's correct." The court concluded that part
of the colloquy with the statement, "So I am going to leave that
just as a contested matter. I am not going to rule on that. I am
just going to allow that to be carried with the records of the case
. . . ."
From the portion of the transcript quoted above, there can be
no conclusion but that the district court determined "that no such
finding is necessary because the matter controverted will not be
taken into account at the sentencing." That such a conclusion was
legally correct is proved by the facts of the case and the
provisions of the guidelines: If the PSR was correct about the
prior conviction, the single point was correctly included in
calculating the defendant's criminal history; if not, the score
would be zero instead of one. But either way, Piazza's criminal
history category would be I, producing the same sentencing range of
0-6 months.
Rule 32(c)(3)(D) does not require the district court to mouth
any particular magic words or to make a talismanic incantation of
the exact phraseology of the rule; it suffices that the record
reflects that the court expressly adverted to the factual
controversy in the PSR and complied with either of the alternative
mandates of the rule. Although here the district court neither
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cited the rule nor expressed its determination in the precise
language of the rule, we decline to engage in a game of "Simon sez"
with our overburdened, able and diligent district courts. To
vacate and remand this case for resentencing would be to engage in
a hollow act and to waste judicial resources which are sorely
needed to deal with the ever increasing burden of matters of
substance. Given the facts and circumstances of this case we
decline to vacate Piazza's sentence and remand for resentencing in
more strict but no more effectual compliance with Rule 32(c)(3)(D).
C. Ineffective Assistance of Counsel
Piazza also claims that her counsel was ineffective because he
failed to insist that the district court make the Rule 32 findings
discussed above. This complaint directed at the effectiveness of
counsel's performance was not presented to the district court and
thus cannot be determined on direct appeal. United States v.
Freeze, 707 F.2d 132, 139 (5th Cir. 1983).
III
For the reasons set forth above, the defendant's conviction
and sentence are
AFFIRMED.
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