United States v. Edward Lemon

McGOWAN, Senior Circuit Judge,

concurring in the result:

I concur in the remand to the District Court because that will expose the issues in this case to the procedures established in the recently amended Fed.R.Crim.P. 32(c)(3)(D), which provides in pertinent part:

If the comments of the defendant and his counsel or testimony or other information introduced by them alleged 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.

The amended rule did not take effect until August 1, 1983, after the defendant’s sentencing, and, thus, was not automatically applicable to this case. The Supreme Court’s order promulgating the amended Rule provides, however, that the amendment may be applied “insofar as just and practical, in proceedings then pending.” This is exactly the kind of case that prompted the amendment of the Rule, and its application on remand will provide an appellate court with a written record of findings and determinations made by the sentencing judge in passing sentence. This *944will allow for limited review based on an actual record rather than appellate speculation.