Roueche Appeal Document

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NO. 09-30441

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLAY ROUECHE,

Defendant-Appellant.

_________________________________________________________

APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

The Honorable Robert S. Lasnik

District Judge

No. 07-CR-00344-RSL

_________________________________________________________

REPLY BRIEF

_________________________________________________________

Sheryl Gordon McCloud

Law Offices of Sheryl Gordon McCloud

710 Cherry St.

Seattle, WA 98104-1925(206) 224-8777

Attorney for Appellant,

Clay Roueche

Case: 09-30441 07/14/2010 Page: 1 of 31 ID: 7404699 DktEntry: 16


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TABLE OF CONTENTS

I. INTRODUCTION .......................................................................1II. THE GOVERNMENT CLAIMS THAT THERE

WAS NO RULE 32 ERROR BECAUSE, AS A

FACTUAL MATTER, THE DISTRICT COURT

CONSIDERED ONLY MR. ROUECHES OWN

ACTS; RULE 32(i)(3)(B), HOWEVER,

REQUIRES FACTFINDING ABOUT EVEN

THE DEFENDANTS OWN ACTS...........................................3

A.The Government Argues That There Was NoRule 32(i)(3)(B) Error Because the District

Court Considered Only Mr. Roueches OwnActs ........................................................................................3

B.Rule 32(i)(3)(B) Requires Factfinding About(Or Declining Reliance on) the Defendants

Own Acts, If There Are Material Disputes

About Them ...........................................................................3

C.The District Courts Statement That it WouldNot Consider Disputed Allegations Concerning

Mr. Roueches BOP Transfer Shows That

When it Declines to Consider Certain Disputed

Facts, It Knows How to Make that Clear...............................5

D.Disputes Over Whether The Defendant UsedViolence and Trafficked, Internationally, in

Uncharged Drugs, are Material ..........................................6

III. RULE 32(i)(3)(B) LEGAL ISSUES AREREVIEWED DE NOVO WHERE THEDEFENSE STATES THAT THERE IS A

DISPUTED ISSUE OF MATERIAL FACT; NO

CITATION TO THAT RULE, OR REQUEST

FOR A RULING ON THE DISPUTES, IS

REQUIRED ................................................................................9



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A.The Government Argues that The Rule 32 ErrorWas Not Preserved for Review ..............................................9

B.The Defense Need Do No More Than Alert theDistrict Court to the Existence of a Disputed

Material Fact to Get De Novo Review ............................... 10

IV. THE GOVERNMENT CLAIMS THAT THEREWAS NO RULE 32 ERROR BECAUSE THE

DISPUTES DID NOT CONCERN GUIDELINES;

BUT RULE 32(i)(3)(B) REQUIRES

FACTFINDING ABOUT EVEN NON-

GUIDELINES MATERIAL FACTS ...................................... 16

A.The Government Argues That Rule 32(i)(3)(B)Applies Only to Guidelines Calculations and

that Implicit Compliance Suffices ...................................... 17

B.Rule 32(i)(3)(B) Is Not Limited to GuidelinesCalculations ......................................................................... 17

C.Rule 32(i)(3)(B) Does Require Express orStrict Compliance ............................................................ 18

V. THE HEARSAY EVIDENCE UPON WHICHTHE DISTRICT COURT RELIED WAS NOT

CORROBORATED BY ANY UNDISPUTED

EVIDENCE ............................................................................. 20

VI. CONCLUSION ........................................................................ 22STATEMENT OF RELATED CASES ............................................................ 23

CERTIFICATE OF COMPLIANCE ................................................................ 24



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TABLE OF AUTHORITIES

CASES

Gall v. United States,552 U.S. 38 (2007)......................................................................................9

United States v. Anton,

353 Fed. Appx. 343 (11th Cir. 2009) ...................................................... 19

United States v. Berry,

258 F.3d 971 (9th Cir. 2001) ............................................................. 14, 15

United States v. Booker,

543 U.S. 220 (2005)....................................................................... 2, 12, 19

United States v. Bostic,

371 F.3d 865 (6th Cir. 2004) ......................................................... 2, 18, 19

United States v. Carter,

219 F.3d 863 (9th Cir. 2000) ....................................................... 12, 13, 18

United States v. Cook,

550 F.3d 1292 (10th Cir. 2008) ............................................................... 14

United States v. Evans-Martinez,__ F.3d __ (9th Cir. 2010), 2010 U.S. App. LEXIS 13929

(July 8, 2010) ........................................................................................... 13

United States v. Hansley,

54 F.3d 70 (11th Cir. 1995) ..................................................................... 12

United States v. Herrera-Rojas,

243 F.3d 1139 (9th Cir. 2001) ................................................................. 18

United States v. Johnson,505 F.3d 120 (2d Cir. 2007) .......................................................................9

United States v. McGhee,

512 F.3d 1050 (8th Cir. 2008) ....................................................................9



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United States v. Orr,

567 F.3d 610 (10th Cir. 2009) ................................................................. 11

United States v. Ponce,

51 F.3d 820 (9th Cir. 1995) ..................................................................... 20

United States v. Ressam,

593, F.3d 1095, 1122 (9th Cir. 2010) ...................................................... 13

United States v. Rodriguez-Luna,

283 Fed. Appx. 485 (9th Cir. 2008) .................................................. 17, 19

United States v. Santiago,

466 F.3d 801 (9th Cir. 2006) ................................................................... 11

United States v. Tindall,519 F.3d 1057 (10th Cir. 2008) ............................................................... 11

United States v. Waknine,

543 F.3d 546 (9th Cir. 2008) ............................................................. 14, 15

United States v. West,

550 F.3d 952 (10th Cir. 2008), overruled on other grounds,

United States v. McConnell, 605 F.3d 922 (10th Cir. 2010) ................... 19

United States v. White,

492 F.3d 380 (6th Cir. 2007) ................................................................... 11

FEDERAL STATUTES AND RULES

18 U.S.C. 3553(a) ....................................................................................... 18

Federal Rule of Criminal Procedure 32 .................................................passim

Federal Rule of Criminal Procedure 32(i) .................................................... 17

Federal Rule of Criminal Procedure 32(i)(A) ............................................... 12

Federal Rule of Criminal Procedure 32(i)(3)(B) ...................................passim

Federal Rule of Criminal Procedure 32(i)(4)(A)(iii) .................................... 14

Federal Rule of Criminal Procedure 32(c)(1) ............................................... 15



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Federal Rule of Criminal Procedure 32(c)(3)(D) ......................................... 12



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I. INTRODUCTIONThe governments principal argument seems to be that the district

court did conduct Rule 32(i)(3)(B) factfinding, because it explicitly stated

that it would limit the matters considered at sentencing to the things

[Roueche] personally did, things he personally said on the wiretaps, the

things that he has personally admitted. E.g., Response, p. 1 (quoting

ER:44). This argument completely misinterprets the district courts

statement. The district court said that it would consider only acts committed

by Mr. Roueche personally, rather than acts committed by others. But that

court never said what it would do about disputes over what acts Mr.

Roueche himself committed and there were big disputes on that point. As

the Opening Brief explained, those disputes centered on whether Mr.

Roueche personally committed acts of brutality and violence in support of

his drug trafficking and whether his drug trafficking included not just the

cocaine and marijuana to which he pled guilty but also international trading

in methamphetamine and ecstasy to which he did not plead guilty. Thus, the

governments main factual argument that the district court really did

conduct factfinding or eschew reliance on disputed material facts fails.

The district court did neither. Section II.



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The governments legal arguments fail, also. The government asserts

that any district court failure to comply with Rule 32(i)(3)(B)s factfinding

mandate must be reviewed under the narrow plain error standard.

Response, pp. 39-40. The defense, however, clearly argued against the

district courts consideration of disputed allegations that Mr. Roueche was

violent, that he used violence and brutality to further his drug trades, and that

he trafficked in vast quantities of uncharged drugs. See Opening Brief, pp.

109-23 (summarizing the defense declarations and arguments against facts

alleged by government). That is all the defense needed to do to preserve the

Rule 32(i)(3)(B) error for de novo appellate review. The governments

argument that a specific statement that all defense objections to

consideration of disputed facts are based on Rule 32(i)(3)(B) and that they

compel the court to conduct factfinding on the disputes presented to avoid

plain error review lacks support in case law or logic. Section III.

The government then argues: (1) that Rule 32(i)(3)(B) does not

require explicit factfinding or explicit declination to consider disputed

facts but only an implicit sense of what the judge did from the transcript; and

(2) that Rule 32(i)(3)(B) is far less important post-Booker1

1United States v. Booker, 543 U.S. 220 (2005).

because it was

really focused on Guidelines calculations. These arguments lack support in



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controlling case law. In fact, this Court has ruled that strict compliance with

Rule 32(i)(3)(B) is required. Section IV.

Finally, with regard to the reliability of the allegations upon which the

district court based its sentence, the government asserts that the hearsay was

sufficiently reliable because it was corroborated by other evidence. The

other evidence that supposedly corroborated it, though, had nothing to do

with the key facts for which that hearsay was offered, that is, to show Mr.

Roueches personal use of and involvement in violence and intimidation.

That portion of the hearsay the portion that really counted was

uncorroborated. Section V.

II. THE GOVERNMENT CLAIMS THAT THERE WAS NORULE 32 ERROR BECAUSE, AS A FACTUAL MATTER,

THE DISTRICT COURT CONSIDERED ONLY MR.

ROUECHES OWN ACTS; RULE 32(i)(3)(B),

HOWEVER, REQUIRES FACTFINDING ABOUT EVEN

THE DEFENDANTS OWN ACTS

A.The Government Argues That There Was No Rule32(i)(3)(B) Error Because the District Court Considered

Only Mr. Roueches Own Acts

The government claims that there was no Rule 32 error because the

district court stated that it would consider only Mr. Roueches own acts.

Response, pp. 1, 38-39.

B.Rule 32(i)(3)(B) Requires Factfinding About (OrDeclining Reliance on) the Defendants Own Acts, If

There Are Material Disputes About Them



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Rule 32, however, requires factfinding about even the defendants

own acts, when there is a factual dispute about those acts. The only thing

exempt from the district courts Rule 32(i)(3)(B) obligation to conduct

factfinding or eschew reliance upon disputed facts, are facts that are not

material and that will not influence the length of the sentence.

In this case, however, there were material factual disputes about what

Mr. Roueche actually did. As the Opening Brief explained, there was a

dispute about whether he used violence to traffic in drugs and to force others

to cooperate with him in such trafficking; there was a dispute about whether

he counseled others to use violence to traffic in drugs; and there was a

dispute over which drugs he trafficked in. Opening Brief, pp. 19-23

(summarizing defense declaration and assertions in opposition to

government allegations that Roueche was violent).

The government cannot plausibly claim that it did not present disputed

facts to the district court about what Mr. Roueche, himself, did. The

government is still presenting inflammatory, disputed, facts now, in the

course of this appeal, to tar Mr. Roueche. E.g., Response, p. 4 (Roueche and

UN Gang had a reputation for employing extreme violence to further

its activities).



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C.The District Courts Statement That it Would NotConsider Disputed Allegations Concerning Mr.

Roueches BOP Transfer Shows That When it Declines

to Consider Certain Disputed Facts, It Knows How to

Make that Clear

The government does accurately summarize a number of facts that the

district court stated it would not rely upon. But those are the allegations that

resulted in Mr. Roueches transfer from the Sea-Tac Federal Detention

Center in Washington to Marion, Illinois, during pre-trial proceedings.

Response, pp. 12-17. The government accurately points out that the district

court specifically stated that it would not rely upon those disputed

allegations at sentencing. Response, pp. 15-16.

The Opening Brief pointed out the same thing. Opening Brief, pp. 5-

6, 7-8, 24.

This does not, however, prove that the district court never considered

disputed facts at sentencing. Instead, it proves that when the district court

made a decision not to rely upon disputed facts, it knew how to make that

clear to the parties and how to memorialize that for the record. The district

court did just that with regard to the allegations supporting the BOP transfer

to Marion. The district court did not do that with regard to the allegations

concerning Mr. Roueches alleged violence and intimidation in supposedly

running the UN Gang or with regard to Mr. Roueches role in transactions in



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other drugs, in a variety of other countries. The natural conclusion to be

drawn from this contrast is that the district court did not rely on the former

set of disputed facts, which formed the basis for the BOP transfer, but that it

did rely on the latter set of disputed facts the ones concerning Mr.

Roueches supposed violence, intimidation, leadership of the UN Gang

through those means, and extraterritorial transactions in other drugs.

D.Disputes Over Whether The Defendant Used Violenceand Trafficked, Internationally, in Uncharged Drugs, are

Material

The government seeks to downplay the significance of the obvious

factual disputes that were presented in the Opening Brief in another way,

also. The government states that the defense did not object to the PSRs

calculation of the base offense level, based on the amount of drugs used.

Response, p. 18. That is correct. The PSR, however, based its calculations

only on marijuana and cocaine, the drugs in the counts charged to which Mr.

Roueche pled guilty. The PSR did not base its calculations on Ecstasy,

methamphetamine, or other uncharged drugs. PSR, 86. Those other

uncharged drugs were, however, brought up by the government at

sentencing, in support of the governments recommended sentence. ER:18.

Thus, the defense decision to make no objection to the PSRs calculation of

drug amount at sentencing does not support the governments argument that



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the defense acquiesced in the district courts consideration of ecstasy and

methamphetamine.

Similarly, the government argues that there was no defense objection

to the PSRs conclusion that Mr. Roueche was a leader of the UN Gang and

involved in, organized, and facilitated every aspect of this conspiracy.

Response, p. 19 (quoting PSR). That is correct. This portion of the PSR,

however, did not make any allegations about Mr. Roueches personal use or

promotion of violence against enemies or even against his alleged

subordinates or coworkers. The allegations of serious acts of violence by

Mr. Roueche, and by others at Mr. Roueches personal direction, were

nevertheless argued by the government at sentencing, in support of the

governments recommended sentence. ER:20-24.

The government properly acknowledges that its own sentencing

memorandum went much further in alleging that Mr. Roueche was

personally involved with leading the UN Gang through threats of force

and violence and with firearms and trafficking in uncharged drugs, including

international trafficking. Response, p. 25 (citing government sentencing

memorandum). See also Response, p. 32-33 (acknowledging that its

sentencing presentation began with allegations of Mr. Roueches own use of

violence). The government further acknowledges that the defense moved to



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strike disputed portions of the government sentencing memorandum and

supporting documents, and that the defense warned the district court that

there would be disputed issues to be resolved at sentencing based on the

governments sentencing memorandum and supporting declarations.

Response, p. 26. The government even admits that the defense filed a

Memorandum on Sentencing Disputes and that that Disputes memorandum

specifically objected to consideration of allegations concerning Mr. Roueche

being involved in violence. Response, p. 27. The government further

concedes that Mr. Roueche specifically objected to allegations that Mr.

Roueche directed others to commit crimes of violence such as the

allegation that he directed Ken Davis to put a gun in the drivers mouth to

force him to disclose the whereabouts of the [missing] load [of marijuana].

Response, p. 29. The government neglects to mention that the district court

denied the defense request to strike the objectionable declarations containing

these disputed allegations, but that happened, also. STR:3; ER:9.

There was also a defense objection to the PSR allegations concerning

trafficking in vast quantities of uncharged drugs. CR:343, Appendix A, p. 3;

ER:336.

Somehow, the government still argues that these were not real or

material disputes and that the district court did not really consider them,



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even though the government and U.S. Probation presented them and, in the

district court, argued that that court should consider them. Response, p. 47.

The government must believe that violence, brutality, counseling and

soliciting violence, and trafficking in methamphetamine and ecstasy, are no

big material deal.

That is totally illogical. They are very serious matters that can affect

sentence. See, e.g., United States v. Johnson, 505 F.3d 120 (2d Cir. 2007)

(affirming sentence rejecting downward departure because of defendants

record of violence). Cf. Gall v. United States, 552 U.S. 38 (2007) (complete

lack of violent criminal history can be considered in mitigation of sentence);

United States v. McGhee, 512 F.3d 1050 (8th Cir. 2008) (lack of violence in

commission of offense can be considered in mitigation of sentence).

III. RULE 32(i)(3)(B) LEGAL ISSUES ARE REVIEWED DENOVO WHERE THE DEFENSE STATES THAT THERE

IS A DISPUTED ISSUE OF MATERIAL FACT; NO

CITATION TO THAT RULE, OR REQUEST FOR A

RULING ON THE DISPUTES, IS REQUIRED

A.The Government Argues that The Rule 32 Error WasNot Preserved for Review

The government next argues that the Rule 32 error was not preserved

in the court below and, hence, is subject to plain error review. The basis for

this argument seems to be that even though the defense disputed material

facts in a Memorandum of Disputed Facts and in its sentencing



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memorandum, the defense began its sentencing presentation without a

request [for] an evidentiary hearing. Response, p. 33.

The Response does acknowledge that the defense further stated that

the declarations we submitted raise extraordinary doubts about some of

those informants that theyre [the government] relying upon. Response, p.

33 (quoting ER:30).2

B.The Defense Need Do No More Than Alert the DistrictCourt to the Existence of a Disputed Material Fact to

Get De Novo Review

The Response nevertheless concludes that this was not

enough of a signal to the district court that there were disputed facts to be

resolved at sentencing.

The government errs in claiming that the defense must do more than

alert the court to a material factual dispute before it is entitled to district

court factfinding on that dispute and to de novo appellate review of any lack

of factfinding. all the defendant must do is alert the district court to the

2Interestingly, the government cites to this portion of the sentencing

transcript as somehow conceding that factual disputes need not be resolved.

Response, p. 33. In context, however, it is clear that the defense is here

emphasizing the material factual differences between the governments

assertions and declarations, on the one hand, and the defense assertions and

declarations, on the other, and that the defense is further suggesting that thegovernments claims are so lacking in credible support from the plea, the

admissions, or the declarations, that they could not possibly increase the

sentence. There is no other plausible interpretation of the defense comments

at sentencing, given the time and effort that the defense put into obtaining

declarations refuting the governments factual claims about Mr. Roueches

personal use and promotion of violence.



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existence of a factual dispute. As one Court has explained: [w]hen a

defendant disputes facts from a PSR purporting to support a sentencing

enhancement, the district courts Rule 32(i)(3)(B) obligation is invoked.

United States v. Orr, 567 F.3d 610, 614 (10th Cir. 2009) (citation omitted)

(stating that after that obligation is invoked by raising disputed facts,

appellate review is de novo). Accord United States v. Tindall, 519 F.3d

1057, 1062 (10th Cir. 2008) ([T]o invoke the district courts Rule 32 fact-

finding obligation, the defendant is required to make specific allegations of

factual inaccuracy.); United States v. White, 492 F.3d 380, 414 (6th Cir.

2007) (de novo review of whether sentencing court violated Rule 32(i)(3)(B)

by failing to make an independent finding, where the defense disputed

governments allegations; duty to make independent findings triggered by

factual dispute alone).

This Court itself explained, in United States v. Santiago, 466 F.3d

801, (9th Cir. 2006), that the defendant has a duty to bring the factual

dispute to the attention of the district court to gain Rule 32 factfinding and

appellate review of that factfinding; there is no additional duty to make a

specific objection to the failure to conduct such factfinding after the

objection to the governments version of the facts has been presented to the

district court:



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A specific objection provides the district court with an

opportunity to address the error in the first instance and allows

this court to engage in more meaningful review. United States

v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004);see United States

v. Carter, 219 F.3d 863, 866-67 (9th Cir. 2000) ([R]esolving a

defendants factual objections to the PSR on the record ensures

meaningful appellate review of the sentence.). Though the

district court may have had concerns about the PSR, when

counsel for Santiago did not object, the district court was

entitled to conclude, without further analysis, that its concerns

were unjustified. See Fed. R. Crim. P. 32(i)(3)(A) (At

sentencing, the court . . . may accept any undisputed portion of

the presentence report as a finding of fact. . . ..

Other circuits addressing similar issues have reached thesame conclusion. SeeBostic, 371 F.3d at 871-72 (reviewing a

sentence for plain error when the defendant filed a downward-

departure motion before the sentencing hearing, the district

court asked for the opinion of government counsel, and the

government failed to object);United States v. Hansley, 54 F.3d

709, 715 (11th Cir. 1995) (applying the plain error standard of

review when the district court asked for objections to the PSRs

drug-quantity attribution and the defendant provided none).

We thus hold that our review is limited to review for

plain error when counsel has not objected to any part of the

PSR, whether or not the district court has expressed concerns,

doubts, or qualifications regarding the PSRs drug-quantity

calculation. ...

Id. at 803-04 (emphasis added).

Thus, in this Courts Rule 32(i)(3)(B) cases (and its Rule 32(c)(3)(D)

cases under the prior version of the rule), this Court has consistently applied

de novo review where the defense explicitly disputed facts alleged by the

government or the Presentence Report even where there is no mention of a

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specific Rule 32(i)(3)(B) objection or request for factfinding. E.g., United

State v. Carter, 219 F.3d 863 (9th Cir. 2000). See also United States v.

Ressam, 593, F.3d 1095, 1122 (9th Cir. 2010) (holding that this Court

reviews issues concerning procedural errors affecting sentencing decisions

de novo, even where the issue was not raised in the district court and noted

raised by either party (on appeal)). Accord United States v. Evans-Martinez,

__ F.3d __ (9th Cir. 2010), 2010 U.S. App. LEXIS 13929 (No. 09-10098)

(July 8, 2010) (same).

The reason that this Court has taken such an approach is important; it

is in large part to ensure[] meaningful appellate review of the sentence.

Carter, 219 F.3d at 866-67 (citations omitted). Not much meaningful

appellate review would be ensured if the governments suggestion that

existing law should be changed to require a specific reference to Rule 32

before de novo review can occur, even though the material factual dispute is

identified is followed.

It is true that there is contrary authority, but not from this Circuit.

Despite the Tenth Circuit decisions cited above requiring only a factual

dispute rather than a specific Rule 32(i)(3)(B) objection or request for Rule

32(i)(3)(B) factfinding to preserve this error for de novo review, another

Tenth Circuit decision seems to require a specific Rule 32 (i)(3)(B) objection



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to obtain such de novo review of a district courts failure to make findings

concerning material disputed facts. United States v. Cook, 550 F.3d 1292,

1298 (10th Cir. 2008) (requiring explicit Rule 32 objection to gain de novo,

rather than plain error, review). However, as the decisions cited above

show, this Court requires only a defense objection to a government

allegation concerning a material fact. The defense did lodge such objections

to consideration of government allegations of Mr. Roueches personal

violence, personal solicitation and counseling of violence, and personal

trafficking, including extraterritorial trafficking, in volumes of other

uncharged drugs.

It is also true that the government cites decisions in its Response in

support of the supposed need to specifically request Rule 32(i)(3)(B)

factfinding (rather than just specifying which material facts are disputed) to

trigger the district courts factfinding duty. It cites United States v. Waknine,

543 F.3d 546, 551 (9th Cir. 2008), and United States v. Berry, 258 F.3d 971,

976 (9th Cir. 2001), to support this supposed rule. Response, p. 39.

Neither of those cases dealt with this issue, though. In Waknine, there

was not even a Rule 32(i)(3)(B) factfinding issue; instead, the appellant

argued that, the district court violated Rule 32(i)(4)(A)(iii) of the Federal

Rules of Criminal Procedure by not giving the government an opportunity to



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speak before imposing a sentence. This Court reviewed for plain error

because there had been no objection on this groundbelow. The Waknine

decision thus sheds no light on whether a specific objection, to specifically

disputed facts, like the ones raised in Mr. Roueches case, preserve a Rule

32(i)(3)(B) error for review. United States v. Waknine, 543 F.3d 546, 551.

In Berry, there was not even a preservation of error issue raised.

Instead, the defendant-appellant in that case argued in the alternative that

because the district court did not hold an evidentiary hearing, it was

compelled by Federal Rule of Criminal Procedure 32(c)(1) to make express

factual findings regarding the reliability of his co-defendants hearsay

statements. Berry, 258 F.3d 971, 976. The standard of review in this Court

was not addressed.

The rest of the plain error cases cited in this portion of the Response

brief are just general plain error cases; they provide no insight about

preserving the sort of Rule 32(i)(3) (B) error alleged in this case. Response,

p. 40.

Thus, under this Courts authority, the error is preserved for de novo

review.

The governments plain error argument errs in another way, also.

The government consistently argues that the defense failed to object to most



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portions of the Presentence Report and, hence that Mr. Roueche is not

entitled to de novo review for that reason. E.g., Response, p. 42 (arguing

that Rule 32 requires factfinding on disputed matters concerning the

presentence report). Rule 32, however, is not limited to the resolution of

factual disputes over the presentence report. It applies by its terms to

any disputed portion of the presentence report or other controverted

matter. Rule 32(i)(3)(B) (emphasis added). The former version of this

Rule, before it was amended, was limited to disputes in the presentence

report. But the current Rule is not.

Thus, it is irrelevant whether the defense objected to material

contained in the Presentence Report (though clearly, the defense did do so,

see CR:343, Appendix A, p. 3; ER:336). The defense objected to the

governments sentencing memorandum, sentencing declarations, and

sentencing presentation, to the extent they tagged Mr. Roueche with

personally committing and personally promoting extreme violence and

brutality in the conduct of the marijuana and cocaine trade. That is all the

defense needed to do to trigger Rule 32(i)(3)(B)s obligations.

IV. THE GOVERNMENT CLAIMS THAT THERE WAS NORULE 32 ERROR BECAUSE THE DISPUTES DID NOT

CONCERN GUIDELINES; BUT RULE 32(i)(3)(B)

REQUIRES FACTFINDING ABOUT EVEN NON-

GUIDELINES MATERIAL FACTS



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A.The Government Argues That Rule 32(i)(3)(B) AppliesOnly to Guidelines Calculations and that Implicit

Compliance Suffices

The government argues that there were no defense objections to the

Guidelines calculations that the court adopted, so once again there can be no

Rule 32 error. E.g., Response, pp. 45-46.

B.Rule 32(i)(3)(B) Is Not Limited to GuidelinesCalculations

Rule 32, however is not limited to Guidelines calculations. See, e.g.,

United States v. Rodriguez-Luna, 283 Fed. Appx. 485, 486 (9th Cir. 2008)

(Initially, we reject the governments suggestion that the district court

was not required to make a Rule 32 determination in these circumstances.

The government reads [prior case] to stand for the proposition that a district

court is required to comply with Rule 32 only where the factual dispute

directly concerns sentencing enhancements under the guidelines. Under the

governments reasoning, because the present factual dispute did not affect

the calculation of the guidelines range of Rodriguez-Luna's sentence, Rule

32s mandate is not operative.; that interpretation is rejected and the

sentence is vacated for failure to comply with Rule 32(i)).

Nor would it make any sense to interpret Rule 32 to be so limited. In

the post-Booker era, Guidelines calculations are just one factor that the

district court considers in imposing sentence. Rule 32 quite logically



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requires the district court to resolve all factual disputes, or eschew reliance

upon all disputed factual matters, that influence sentencing and that

involves far more than Guidelines disputes. As the Court is undoubtedly

aware, that involves all factual data permissibly considered under 18 U.S.C.

3553(a).

C.Rule 32(i)(3)(B) Does Require Express or StrictCompliance

Next, the government argues that the district court does not need to

expressly comply with Rule 32; substantial compliance by not mentioning

disputed facts when it sentences, is enough. Response, p. 32 (Although the

court did not expressly state that it was disregarding all disputed facts, that

fact is implied by its statements regarding the limits of what it considered in

crafting the sentence.).

That is contrary to the law of this Circuit. This Court has ruled that

strict compliance with Rule 32 is required. United States v. Herrera-Rojas,

243 F.3d 1139, 1142 (9th Cir. 2001). Failure to make such findings requires

resentencing, under this Courts binding precedent. United States v. Carter,

219 F.3d 863 (vacating sentence and remanding for resentencing because

defendant challenged factual statements in PSR and district court neither

resolved disputed factual issues nor indicated that they lacked relevance).



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The government even argues that there is no need for such strict

compliance post-Booker, because Booker made the Guidelines less

important. E.g., Response, pp. 42-43. This Court, however, continues to

apply Rule 32(i)(3)(B) post-Booker. United States v. Rodriguez-Luna, 283

Fed. Appx. 485 (defendant entitled to resentencing due to violation of Rule

32(i) by district courts failure to rule on or declare that it would not

consider whether defendant had been a passenger or the smuggler when

captured by Border Patrol, since matter was in dispute and might have

affected length of sentence). So do the other Circuits. E.g., United States v.

Anton, 353 Fed. Appx. 343, 346 (11th Cir. 2009) (reversing and remanding

due to district courts failure to make Rule 32(i)(3)(B) findings on

controverted facts); United States v. West, 550 F.3d 952 (10th Cir. 2008)

(vacating and remanding for resentencing based on failure to make findings

on disputed facts), overruled on other grounds, United States v. McConnell,

605 F.3d 922 (10th Cir. 2010). Since Rule 32 applies to not just presentence

reports, and to not just Guidelines calculations, but to all material disputes

affecting any ingredient of the severity of the sentence, it makes sense that

Rule 32(i)(3)(B) would apply with full force post-Booker not just to the

formal Guidelines calculation which is no longer outcome-determinative.



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V. THE HEARSAY EVIDENCE UPON WHICH THEDISTRICT COURT RELIED WAS NOT

CORROBORATED BY ANY UNDISPUTED EVIDENCE

The government then claims that the hearsay evidence that was

presented to the district court in support of the governments sentencing

recommendation was sufficiently reliable. First, the government claims that

this information specifically, the LeClerc declaration should be

considered reliable because the defense declarations containing information

in opposition were unreliable. Response, pp. 50-51.

There is, however, no authority for the rule that a government

declaration gains greater reliability and corroboration if the defense does not

submit convincing, admissible, evidence in opposition. In fact, in one of

this Courts seminal decisions establishing the rule that uncorroborated

hearsay is inadmissible at sentencing, there was no defense submission on

the disputed factual matter. Still, this Court ruled: While hearsay

statements may be considered at sentencing, due process requires that such

statements be corroborated by extrinsic evidence. United States v. Ponce, 51

F.3d 820, 828 (9th Cir. 1995) (emphasis added).

The government points to only two disputed facts in the hearsay

declarations that actually did have corroboration. The first one concerns

support for LeClercs assertions about cocaine trafficking. Response, pp.



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51-52. But Mr. Roueche himself pled guilty to that crime; that was not the

fact that he was disputing. Instead, Mr. Roueche disputed the allegations

concerning personal commission and promotion of violence. Corroboration

of cocaine trafficking does not address that disputed fact.

The second disputed hearsay allegation that the government addressed

is the Davis declaration. Response, p. 52. The government argues that there

was corroboration for a lot of what was in that declaration in Mr. Roueches

own admissions. The government acknowledges, however, that Mr.

Roueche never admitted directing the violence alleged there, including

putting a gun in the mouth of a confederate in a show of force to intimidate

him. Id. The government points to no other corroboration of that bit of

hearsay, either. Id.

The governments discussion of these items of hearsay thus misses the

mark completely. It does not address the materially inculpatory hearsay

allegations concerning violence at all.

//



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VI. CONCLUSIONFor the foregoing reasons, the sentence should be vacated and the case

should be remanded for resentencing.

Dated this 14th day of July, 2010.

Respectfully submitted,

s/Sheryl Gordon McCloud

Sheryl Gordon McCloud, WSBA #16709

Attorney for Appellant Clay Roueche


710 Cherry St.Seattle, WA 98101

(206) 224-8777; (206) 623-5951 (fax)

[email protected]

mailto:[email protected]:[email protected]:[email protected]


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STATEMENT OF RELATED CASES

To counsels knowledge, there are no related cases pending in this

Court.



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24

CERTIFICATE OF COMPLIANCE WITH

FED. R. APP. P. RULE 32(a)(7)(C)AND NINTH CIRCUIT RULE 32-1

FOR CASE NUMBER 09-30441

I certify that:

Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the

attached Reply Brief is:

Proportionately spaced, has a typeface of 14 points or more and contains

4,570 words.

Dated this 14th day of July, 2010.

Respectfully submitted,



Attorney for Appellant Clay Roueche


710 Cherry St.

Seattle, WA 98101

(206) 224-8777; (206) 623-5951 (fax)

[email protected]



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CERTIFICATE OF SERVICE

I hereby certify that on July 14th, 2010, I electronically filed the

foregoing with the Clerk of the Court of the United States Court of Appeals for

the Ninth Circuit by using the appellate CM/ECF system.

Participants in the case who are registered CM/ECF users will be served

by the appellate CM/ECF system.



Attorney for Appellant Clay RouecheLaw Offices of Sheryl Gordon McCloud

710 Cherry St.

Seattle, WA 98101

(206) 224-8777; (206) 623-5951 (fax)

[email protected]


Documents

Roueche Appeal Document