US v. Saeteurn, No. 06-10401 (10-15-07). The PSR gets facts wrong, but the facts do not affect the term of imprisonment, but may affect how the sentence is served (i.e. early release). Does the court have a duty under Fed.R.Crim.P. 32 to resolve these disputes? The 9th (Bea joined by Hawkins and Tashima) hold "no." The case involved a defendant who may have derivative citizenship. The court refused to correct the PSR to so state, hedging that the defendant is either a legal resident or a citizen. The defendant argued this affected where he would serve his sentence, the conditions, and early release. The 9th grants this impact, but in analyzing Rule 32, and the PSRs, concludes that the requirement to resolve disputes focuses on the temporal element. Time is what matters; not how the time is served. The 9th also found the sentence to be reasonable, although the court engaged in weighing culpability of various codefendants, because the court examined individual background and circumstances in imposing a bottom of the guidelines sentence.

In so deciding, the 9th may have been concerned with the range of issues the court might have to face. Still, it seems to go against the thrust of the PSR being a reliable document under Rule 32. Perhaps it should not be treated as so trustworthy by the court any longer. The decision to take a pass on the PSR issue has implications. Of course it has a profound affect on citizenship matters, but also on sex offenses, and also on prior conditions. The PSR at a minimum should note the dispute and the court's decision not to resolve.