NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 19-1543 ________________
UNITED STATES OF AMERICA
v.
FRANCISCO SANTOS, also known as F.S.S., also known as A.C.M., also known as LUIS COLON, Appellant ________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 5:18-cr-00215-001) Honorable Edward G. Smith, U.S. District Judge ________________
Submitted Under Third Circuit L.A.R. 34.1(a) November 14, 2019
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: December 23, 2019) ________________
OPINION* ________________
KRAUSE, Circuit Judge.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Francisco Santos appeals his judgment of conviction, arguing that the District Court
erred under Federal Rule of Criminal Procedure 32(i)(3)(B) at his sentencing hearing.
Because we agree and we find that this error was not harmless, we will vacate and remand.
Discussion1
A. The District Court violated Rule 32(i)(3)(B)
Federal Rule of Criminal Procedure 32(i)(3)(B) requires a District Court—“for any
disputed portion of the presentence report or other controverted matter”—to “rule on the
dispute or determine that a ruling is unnecessary.” This rule is “strictly enforced.” United
States v. Electrodyne Sys. Corp., 147 F.3d 250, 255 (3d Cir. 1998).
Here, there was a dispute over Santos’s citizenship, and the District Court did not
follow Rule 32(i)(3)(B)’s mandate that it either resolve this dispute or determine that a
ruling was unnecessary. Santos implicated Rule 32(i)(3)(B) by contesting the
Government’s allegation that he was an illegal alien born in the Dominican Republic and
asserting that he was actually a United States citizen born in Puerto Rico.2 The District
Court then acknowledged the uncertainty of Santos’s immigration status several times
during the sentencing hearing, including while it was explaining its sentence, yet it neither
ruled on whether Santos was a United States citizen nor rejected the relevance of this
disputed fact. Rather, the District Court left room to infer that it did rely on the disputed
1 The District Court had jurisdiction 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 2 A party does not need to request an evidentiary hearing in order to trigger Rule 32(i)(3)(B). United States v. Furst, 918 F.2d 400, 408 (3d Cir. 1990).
2 fact: It found that the “issue . . . with [Santos’s] legal status” was “proper argument” for
the Government to make, J.A. 102, and only moments after imposing the sentence, stated
that it had “no idea if [Santos is] even illegally here in the United States or not.”3 J.A. 118.
By failing to either expressly rule on this factual dispute or expressly disclaim reliance on
it, see Electrodyne, 147 F.3d at 255, the District Court violated Rule 32(i)(3)(B).
B. Santos Preserved his Objection to the Rule 32(i)(3)(B) Violation
A party may preserve an objection to a procedural sentencing error by making an
objection “when the procedural error be[o]me[s] evident,” and “need not repeat the
objection after sentence is imposed.” United States v. Flores-Mejia, 759 F.3d 253, 255 n.1
(3d Cir. 2014) (en banc). This is precisely what Santos did here. At the sentencing hearing,
Santos’s counsel objected immediately when the Government began arguing that he was
not a United States citizen, stating that “[t]his is getting into argument . . . based on
[immigration] crimes for which my client isn’t here to be sentenced today.” J.A. 102.
When the District Court responded that this was “proper argument for the United States to
make,” Santos’s counsel asked the Court to note his “standing objection to this line” of
3 Although a district court’s adoption of a presentence report may satisfy Rule 32(i)(3)(B), the District Court’s adoption of the presentence report here did not satisfy the rule. The District Court’s adoption of the presentence report did not resolve the factual dispute because it neither clearly stated its grounds for adopting the factual findings in the presentence report on the record, see United States v. Singh, 923 F.2d 1039, 1044 (3d Cir. 1991), nor explicitly found that the presentence report’s findings were supported by a preponderance of the evidence, see United States v. Campbell, 295 F.3d 398, 406 (3d Cir. 2002). And adopting the presentence report could not have resolved the disputed fact of Santos’s citizenship, because the presentence report was ambiguous as to this fact: as the District Court acknowledged at sentencing, the probation officer was unable to determine Santos’s citizenship one way or the other. J.A. 102. 3 argument. Id. Santos’s counsel then objected a third time, explaining that he was not
“conceding the accuracy of . . . the presumption . . . the government wish[ed] [the Court]
to . . . reach” regarding Santos’s citizenship and reiterating Santos’s sworn testimony that
he was born in Puerto Rico. J.A. 106.
Santos’s counsel therefore did not merely raise a factual dispute, but also explicitly
objected to the District Court’s consideration of the disputed fact of Santos’s citizenship in
imposing its sentence. That sufficed to preserve the error under our precedent. See Flores-
Mejia, 759 F.3d at 258 (holding that where “a relevant objection has been made earlier,” a
party need not reiterate that objection “to preserve the error and avoid plain error review”).
And it accords with our sister circuits’ approach to waiver and preservation in the Rule
32(i)(3)(B) context. Compare United States v. Wagner-Dano, 679 F.3d 83, 90–94 (2d Cir.
2012) (finding a Rule 32(i)(3)(B) error unpreserved when the defendant objected to the
PSR but raised no objection at the sentencing hearing), with United States v. Cruz, 680
F.3d 1261, 1263 (10th Cir. 2012) (finding a Rule 32(i)(3)(B) error preserved when the
defendant objected to the District Court’s factual findings during the sentencing hearing).
And although Santos’s counsel did not repeat this objection after the sentence was imposed,
he nevertheless preserved the objection because he objected as soon as the District Court
made clear it was to going to allow the Government to make argument about Santos’s
citizenship “even though it hasn’t been confirmed one way or the other,” J.A. 102—the
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________
No. 19-1543 ________________
UNITED STATES OF AMERICA
v.
FRANCISCO SANTOS, also known as F.S.S., also known as A.C.M., also known as LUIS COLON, Appellant ________________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 5:18-cr-00215-001) Honorable Edward G. Smith, U.S. District Judge ________________
Submitted Under Third Circuit L.A.R. 34.1(a) November 14, 2019
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: December 23, 2019) ________________
OPINION* ________________
KRAUSE, Circuit Judge.
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Francisco Santos appeals his judgment of conviction, arguing that the District Court
erred under Federal Rule of Criminal Procedure 32(i)(3)(B) at his sentencing hearing.
Because we agree and we find that this error was not harmless, we will vacate and remand.
Discussion1
A. The District Court violated Rule 32(i)(3)(B)
Federal Rule of Criminal Procedure 32(i)(3)(B) requires a District Court—“for any
disputed portion of the presentence report or other controverted matter”—to “rule on the
dispute or determine that a ruling is unnecessary.” This rule is “strictly enforced.” United
States v. Electrodyne Sys. Corp., 147 F.3d 250, 255 (3d Cir. 1998).
Here, there was a dispute over Santos’s citizenship, and the District Court did not
follow Rule 32(i)(3)(B)’s mandate that it either resolve this dispute or determine that a
ruling was unnecessary. Santos implicated Rule 32(i)(3)(B) by contesting the
Government’s allegation that he was an illegal alien born in the Dominican Republic and
asserting that he was actually a United States citizen born in Puerto Rico.2 The District
Court then acknowledged the uncertainty of Santos’s immigration status several times
during the sentencing hearing, including while it was explaining its sentence, yet it neither
ruled on whether Santos was a United States citizen nor rejected the relevance of this
disputed fact. Rather, the District Court left room to infer that it did rely on the disputed
1 The District Court had jurisdiction 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 2 A party does not need to request an evidentiary hearing in order to trigger Rule 32(i)(3)(B). United States v. Furst, 918 F.2d 400, 408 (3d Cir. 1990).
2 fact: It found that the “issue . . . with [Santos’s] legal status” was “proper argument” for
the Government to make, J.A. 102, and only moments after imposing the sentence, stated
that it had “no idea if [Santos is] even illegally here in the United States or not.”3 J.A. 118.
By failing to either expressly rule on this factual dispute or expressly disclaim reliance on
it, see Electrodyne, 147 F.3d at 255, the District Court violated Rule 32(i)(3)(B).
B. Santos Preserved his Objection to the Rule 32(i)(3)(B) Violation
A party may preserve an objection to a procedural sentencing error by making an
objection “when the procedural error be[o]me[s] evident,” and “need not repeat the
objection after sentence is imposed.” United States v. Flores-Mejia, 759 F.3d 253, 255 n.1
(3d Cir. 2014) (en banc). This is precisely what Santos did here. At the sentencing hearing,
Santos’s counsel objected immediately when the Government began arguing that he was
not a United States citizen, stating that “[t]his is getting into argument . . . based on
[immigration] crimes for which my client isn’t here to be sentenced today.” J.A. 102.
When the District Court responded that this was “proper argument for the United States to
make,” Santos’s counsel asked the Court to note his “standing objection to this line” of
3 Although a district court’s adoption of a presentence report may satisfy Rule 32(i)(3)(B), the District Court’s adoption of the presentence report here did not satisfy the rule. The District Court’s adoption of the presentence report did not resolve the factual dispute because it neither clearly stated its grounds for adopting the factual findings in the presentence report on the record, see United States v. Singh, 923 F.2d 1039, 1044 (3d Cir. 1991), nor explicitly found that the presentence report’s findings were supported by a preponderance of the evidence, see United States v. Campbell, 295 F.3d 398, 406 (3d Cir. 2002). And adopting the presentence report could not have resolved the disputed fact of Santos’s citizenship, because the presentence report was ambiguous as to this fact: as the District Court acknowledged at sentencing, the probation officer was unable to determine Santos’s citizenship one way or the other. J.A. 102. 3 argument. Id. Santos’s counsel then objected a third time, explaining that he was not
“conceding the accuracy of . . . the presumption . . . the government wish[ed] [the Court]
to . . . reach” regarding Santos’s citizenship and reiterating Santos’s sworn testimony that
he was born in Puerto Rico. J.A. 106.
Santos’s counsel therefore did not merely raise a factual dispute, but also explicitly
objected to the District Court’s consideration of the disputed fact of Santos’s citizenship in
imposing its sentence. That sufficed to preserve the error under our precedent. See Flores-
Mejia, 759 F.3d at 258 (holding that where “a relevant objection has been made earlier,” a
party need not reiterate that objection “to preserve the error and avoid plain error review”).
And it accords with our sister circuits’ approach to waiver and preservation in the Rule
32(i)(3)(B) context. Compare United States v. Wagner-Dano, 679 F.3d 83, 90–94 (2d Cir.
2012) (finding a Rule 32(i)(3)(B) error unpreserved when the defendant objected to the
PSR but raised no objection at the sentencing hearing), with United States v. Cruz, 680
F.3d 1261, 1263 (10th Cir. 2012) (finding a Rule 32(i)(3)(B) error preserved when the
defendant objected to the District Court’s factual findings during the sentencing hearing).
And although Santos’s counsel did not repeat this objection after the sentence was imposed,
he nevertheless preserved the objection because he objected as soon as the District Court
made clear it was to going to allow the Government to make argument about Santos’s
citizenship “even though it hasn’t been confirmed one way or the other,” J.A. 102—the
moment “the error became evident,” Flores-Mejia, 759 F.3d at 255 n.1.—and the District
Court agreed to treat it is a “standing objection,” J.A. 102.
4 C. This Error Was Not Harmless
Because Santos preserved his objection, we review for harmless error. See United
States v. Lewis, 802 F.3d 449, 454, 456 (3d Cir. 2015) (en banc). Harmless-error review
of a sentencing error “turns on whether the error did or did not ‘contribute to the [sentence]
obtained.’” Id. at 456 (quoting Sochor v. Florida, 504 U.S. 527, 539 (1992) (alteration in
original)). We look to “whether the error ‘would have made no difference to the
sentence.’” Id. (quoting Parker v. Dugger, 498 U.S. 308, 319 (1991)).
Here, we are not persuaded that the District Court’s sentence was unaffected by the
dispute over Santos’s citizenship. The District Court sentenced Santos to eighteen months’
imprisonment—at the very top of the Guidelines range. The Government argued
repeatedly that Santos’s lack of legal status in the United States justified a sentence at the
top of the Guidelines range. In particular, the Government argued that Santos’s lack of
legal status made deterrence an important consideration in sentencing Santos for passport
fraud. See App. 66 (arguing that “[a] significant sentence is required in this case . . . so
that no one, particularly illegal aliens, tries to obtain a United States passport using an
alias”). And the Government also used the purported confusion over Santos’s legal status
to paint a picture of Santos as someone who was been consistently untruthful about his
identity and has given inconsistent stories to law enforcement.
We cannot say from the record before us that the District Court did not take the
Government’s arguments about Santos’s ambiguous legal status into account when
deciding to impose a sentence at the top of the Guidelines range: The District Court
referenced the need for deterrence; “a long period of criminal offenses,” J.A. 116; and “the
5 characteristics of the defendant . . . coupled with the idea that I’m not even sure whether
you know whether you’re legally in the United States or not,” J.A. 116–117. While the
District Court has discretion to impose the same sentence on remand, it may do so only for
permissible reasons and consistent with the applicable rules. Because we cannot be
confident it did so at the original sentencing, we must vacate and remand for resentencing.
Cf. United States v. Payano, 930 F.3d 186, 198 (3d Cir. 2019) (vacating and remanding for
resentencing when it was impossible to conclude that the district court did not rely on the
government’s “pervasive[]” sentencing argument). In sum, the District Court’s error was
not harmless.
Conclusion
For the foregoing reasons, we will vacate and remand the judgment of the District
Court.