Sunday, February 10, 2013

Case o' The Week: An Unappetizing Petri Dish -- Petri, Rule 32, and Sentencing Objections

Six years ago, we complained of the Ninth’s decision in United States v. Saeteurn, 504 F.3d 1175 (9th Cir. 2007); see blog entry here. In Saeteurn, the Court held that there was no need to resolve disputed facts in a PSR, when those facts don’t actually affect the term of imprisonment imposed. Put differently, Saeteurn allowed the district court and the government to dodge meaningful appellate review, even when the defense squarely alleged factual errors at sentencing.

In the wise words of Yogi Berra, déjà vu all over again. United States v. Dan Petri, 2013 U.S. App. LEXIS 2714 (9th Cir. Feb. 8, 2013), decision available here.

Players: Decision by Judge Tallman, joined by Judges Schroeder and McKeown. Hard-fought appeal by D. Wa. AFPD Michael Filopovic and R&W Attorney Alan Zarky.

Facts: With two co-D’s, Petri worked an ATM card-skimming scheme that netted over $200k. Id. at *2. Petri pleaded guilty, and Probation balked at a minor role reduction. Id. at *3. In a sentencing memo, Petri’s counsel explained that the (at-large) “Sorin” was the real heavy, that Petri was coerced to participate in the scheme, and that Petri received less than $20k of the proceeds. Id. The district court denied minor role, didn’t really rule on the “Sorin” facts, but took Petri’s arguments “into account” and varied downwards under §3553(a) to impose a below-guideline sentence. Id. at *6. Petri appealed. Id.

Issue(s): “A full decade after an amendment to Rule 32 . . . we are asked for the first time to determine whether the amendment represented a vast expansion of the district court’s fact-finding responsibilities at sentencing. The defendant . . . insists that Rule 32(i)(3)(B) extends the district court’s fact-finding responsibility to all matters controverted, no matter how they are presented, throughout the entire sentencing phase.” Id. at *1.

Held:The rule’s context and history . . . demonstrate an intent to narrow the rule’s scope to only those factual objections to the presentence report that have the potential to affect the sentence. Because we cannot square this strong evidence of legislative purpose with the defendant’s broad interpretation, we affirm.” Id at *2. “Because Rule 32(i)(3)(B) pertains only to unresolved objections to the presentence report, the district court had no responsibility to address either of the arguments raised during sentencing.” Id. at *17 (emphasis added).

Of Note: “Petri’s argument,” Judge Tallman opines, “is a valiant attempt at grammatical dissection.” Id. at *9. At issue is a 2002 amendment to Rule 32. The real issue is whether, under the amended rule, the district court has to decide “other controverted matter[s]” – that is, decide any issue disputed at sentencing, even if the disputed fact isn’t in the PSR. Id. at *9. “Rule 32,” the panel holds, “does not extend so far.” Id. Because Petri objected only to the PSR’s refusal to give a minor role reduction, “but did not allege a factual inaccuracy in the presentence report,” Rule 32’s requirement that factual objections be resolved wasn’t triggered. Id. at *18.

How to Use: Read Petri with a practitioner’s eye and you’ll quickly see the unwritten back story. At sentencing Petri’s counsel explained how Petri was the victim of an armed and at-large Svengali, who manipulated and coerced this low-level schmo as part of a larger skimming scheme. Id. at *4. Notably, there was no evidence submitted in support of this version of events, no declaration from Petri himself, and no demand that these defense facts be put in the PSR – and thus little risk of obstruction or loss of acceptance if the facts didn’t pan out. (A familiar and prudent defense strategy). 

There’s a sure way to circumvent Petri and make a district court rule on objections – throw down and insist that the defense facts be included in the PSR. (Of course, you’ll risk obstruction and loss-of-acceptance). Petri well-illustrates a profoundly unfair dis-symmetry. If the government’s version of events is rejected, the AUSA just loses the enhancement. If our version of facts is rejected, we risk five more offense levels with the loss of acceptance and an obstruction bump. Saddling only one party with this huge litigation disincentive is a lousy way of getting to the truth of the matter.
For Further Reading: For a compelling explanation of how the Guidelines’ procedural dis-symmetry is unfair to the defense and frustrates the pursuit of truth at sentencing, see Margareth Etienne, Parity, Disparity, and Adversariality: First Principles of Sentencing, 58 Stan. L. Rev. 309, 318 (Oct. 2005), available here.

Image of petri dish from

Steven Kalar, Federal Public Defender N.D. Cal. FPD. Website at


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