                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JAN 29 2004
                                TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee                       No. 02-3058
          v.                                             (D. Kansas)
 FRANCISCO BANDA,                            (D.C. No. 00-CR-40126-02-RDR)

               Defendant-Appellant




                           ORDER AND JUDGMENT *


Before EBEL, HENRY, and HARTZ, Circuit Judges.



      Francisco Banda pleaded guilty to conspiring with the intent to distribute

500 grams or more of methamphetamine, a violation of 21 U.S.C. § 841. After

overruling Mr. Banda’s objections to the presentence report, the district court




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
sentenced him to 180 months’ imprisonment. Mr. Banda now appeals that

sentence. **

       Upon review of the record, we conclude that the district court did not make

sufficient findings for appellate review regarding Mr. Banda’s specific objections

to the presentence report, as required by Fed. R. Crim. P. 32(c)(1). 1 Accordingly,

we remand this case for further findings.



                                I. BACKGROUND

       In December 2000, the government charged Mr. Banda and two other

defendants, Adam Grabel Guzman and Michael Thomas Albers, with conspiring

to distribute 500 grams of a mixture or substance containing methamphetamine, a

violation of 21 U.S.C. § 846. The government also charged Mr. Banda and his

co-defendants with several other counts of possessing methamphetamine and

marijuana with the intent to distribute, violations of 21 U.S.C. § 841(a)(1). The




       **
          After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1 (G). The
case is therefore submitted without oral argument.
       1
         As noted below, after Mr. Banda’s original sentencing, Fed. R. Crim. P.
32(c)(1) was amended and renumbered. The requirement that the district court
make findings regarding objections to the presentence report is now set forth in
Fed. R. Crim. P. Rule 32(i)(3). See United States v. Treadway, 328 F.3d 878, 885
n.3 (6th Cir. 2003).

                                        -2-
government subsequently filed a superseding indictment, and Mr. Banda pleaded

guilty to the conspiracy count.

      The presentence report assigned Mr. Banda an offense level of thirty-eight

and a criminal history category of III, thus arriving at a Guideline range of 292-

365 months. In reaching this conclusion, the presentence report reviewed the

conduct of Mr. Banda and other members of the charged conspiracies. See Rec.

vol. IV, ¶¶ 25-67. The report determined that “the total amount of drugs

attributable to [Mr. Banda] is 20,479.53 grams (20.48 kilograms) of

methamphetamine and 165,341.18 grams (165.34 kilograms) of marijuana.” Id. ¶

at 69. The report further explained that “[p]ursuant to Application Note 10 of

USSG § 2D1.1, the probation office has converted the methamphetamine mixture

and marijuana into their marijuana equivalent to obtain a single offense level for

the offense.” Id. The converted amount of marijuana was 41,070.32 kilograms.

Id.

      The report also concluded that Mr. Banda “held a position of trust as a

manager or supervisor in the instant offense by holding the position of ‘top

lieutenant’ for Adam Guzman and even assumed leadership of the conspiracy

when Adam Guzman withdrew because of police suspicions and intervention.”

Id. at ¶ 78. That conclusion led the report to recommend a three-level increase in

the offense level pursuant to USSG § 3B1.1(b). Id.



                                         -3-
         Mr. Banda filed a total of forty-two objections to the presentence report.

See Rec. vol. I, docs 95, 98 (Objection to PSI and Supplemental Objections to

PSI, filed July 31, 2001 and August 16, 2001). Many of his objections concerned

the estimates of the quantities of drugs involved in the charged conspiracy. In

some instances, Mr. Banda specifically contested the facts set forth in the report.

For example, paragraph 64 of the presentence report stated that Mr. Banda would

take “a couple pounds” of methamphetamine from Mr. Albers to give to Mr.

Guzman. Mr. Banda responded that he had never taken more than half a pound.

Similarly, paragraph 67 of the presentence report stated that Mr. Banda and Mr.

Albers traveled to a house in Dodge City, Kansas where Mr. Albers picked up

seventy-eight pounds of marijuana. Mr. Banda responded by admitting that Mr.

Albers had picked up marijuana but stated that the quantity was only thirty

pounds. See Aplt’s Reply Br. at 3-4 (discussing Mr. Banda’s objections); Aplt’s

Supl. Br. at 10-11 (same).

         Mr. Banda also objected to the presentence report’s characterization of him

as a leader or organizer of the conspiracy. He stated that he “was never an

organizer or leader. He was not involved to that extent, he was just a user trying

to feed his own habit.” Rec. vol. I, doc. 95, ¶ 31 (Objection to PSI, filed July 31,

2001).




                                           -4-
      At the sentencing hearing, the district court overruled Mr. Banda’s

objections. See Rec. vol III. (Tr. of Feb. 4, 2002 Hr’g., at 5-10). The court set

forth its ruling in a subsequent memorandum and order. See Rec. doc. 142 (Mem.

Op. and Order, filed Feb. 12, 2002).

      The court ruled as follows:

             Most of [Mr. Banda’s] objections raise factual disputes.
             The court has found only two that appear to raise a legal
             argument. The court has carefully considered the evidence
             concerning each of these objections, and we have
             determined that the statements contained in the
             presentence report accurately reflect the information
             provided by co-conspirators, law enforcement officers, and
             others. The court has found this information to be
             sufficiently reliable for sentencing purposes. Accordingly,
             the defendant’s objections shall be denied.

                    The court does wish to briefly comment on several
             of the objections. In objection nos. 4, 5, 9, 10 and 11, the
             defendant contend that the amount of methamphetamine
             considered in various parts of the presentence report
             should be reduced because the methamphetamine in
             question was a mixture, not pure methamphetamine. The
             probation office has noted that the various references to
             methamphetamine were mixtures, not pure
             methamphetamine. In calculating the weight of the drugs
             to be attributed to the defendant, the probation office has
             transformed the methamphetamine to marijuana using the
             formula for methamphetamine that is a mixture. In sum,
             the court finds no merit to any of these suggestions by the
             defendant concerning the methamphetamine.               The
             probation office has correctly calculated the amount
             attributable to the defendant.

                   The defendant has raised a number of objections
             indicating simply that some portion of the presentence

                                         -5-
report is either factually incorrect or false. The court is
not persuaded that the defendant has sufficiently
demonstrated any of the facts contained in the presentence
report are false or incorrect. The defendant has not
offered any evidence to support his contentions. The court
finds that the evidence in the record sufficiently supports
the findings contained in the report. Moreover, this
evidence has the minimal indicia of reliability necessary
for sentencing purposes.

       [Mr. Banda] has raised one objection concerning a
legal conclusion made in the presentence report. He
contends that his offense level should not be enhanced by
three levels as an organizer and leader. . . .

....

       The evidence before the court clearly indicates that
[Mr. Banda] was a leader and organizer of this conspiracy.
The evidence shows that [Mr. Banda] was the leader of the
conspiracy while Adam Guzman was incarcerated. There
is also evidence that during other periods the defendant
exercised significant control over others in the conspiracy.
He controlled the monies generated by the conspiracy and
he directed the distribution of the narcotics. In sum, this
objection shall be denied.

      The defendant has also contended that his relevant
conduct should not be enhanced by the self-serving
statements of his co-conspirators.

       . . . The Tenth Circuit has rejected the suggestion
that the testimony of an accomplice should seldom, if ever,
be believed. . . .

       The court is confident that the information provided
by the defendant’s co-conspirators possesses a sufficient
indicia of reliability. The court finds no error in the
presentence report’s reliance upon these statements.



                            -6-
Id. at 1-6 (citations and internal quotation marks omitted).

      After overruling his objections, the district court sentenced Mr. Banda to a

180-month term of imprisonment, based upon an offense level of thirty-eight and

a criminal history category of III. Pursuant to USSG § 5K1.1, the court departed

downward from the Guideline range because Mr. Banda had provided substantial

assistance to the prosecution.

      Mr. Banda then challenged his sentence on appeal. His assigned counsel

filed a brief pursuant Anders v. California, 386 U.S. 738 (1967), stating that Mr.

Banda sought to contest the district court’s determination of the drug quantities

for which Mr. Banda could be held responsible as well as the court’s refusal to

depart downward to a greater extent. In August 2002, this court affirmed Mr.

Banda’s sentence in an unpublished order. We noted that although we lacked

jurisdiction to review the extent of departure, we did have jurisdiction to review

the determination of drug quantity. However, we further concluded that the

evidence relied on by the district court possessed sufficient indicia of reliability.

      Mr. Banda then filed a pro se petition for rehearing. This court granted the

motion, recalled the mandate, reopened the appeal, and appointed the Federal

Public Defender to submit supplemental briefs on behalf of Mr. Banda.




                                          -7-
                                  II. DISCUSSION

      In his pro se brief, Mr. Banda argues that the district court erred in

applying the three-level increase in the offense level under USSG § 3B1.1(b) on

the grounds that he served as a leader of the charged conspiracy. Mr. Banda also

challenges the district court’s downward departure, arguing that the cooperation

with prosecutors in the Western District of Missouri warranted a more extensive

departure. In supplemental briefs, the Federal Public Defender argues that the

district court failed to comply with Fed. R. Crim. P. 32(c)(1) by failing to make

specific findings as to Mr. Banda’s objections. We begin with the Federal Public

Defender’s challenges and then proceed to the arguments that Mr. Banda has

raised pro se.



  A. Failure to Make Findings Regarding Objections to the Presentence Report

      At the time of Mr. Banda’s sentencing, Rule 32(c)(1) provided that “[a]t the

sentencing hearing . . . [f]or each matter controverted, the court must make either

a finding on the allegation or a determination that no finding is necessary because

the controverted matter will not be taken into account in, or will not affect,

sentencing.” Fed. R. Crim. P. 32(c)(1); see generally United States v. Pedraza, 27

F.3d 1515, 1531 (10th Cir. 1994) (discussing Rule 32(c)(1),which was formerly

numbered Rule 32(c)(3)(D)). The Federal Public Defender contends that by



                                          -8-
merely adopting the presentence report, the district court failed to comply with

Rule 32(c)(1) and that, as a result, this court must remand the case to the district

court so that it can make the required findings. 2 We engage in de novo review of

the district court’s compliance with the Federal Rules of Criminal Procedure.

United States v. Kravchuk, 335 F.3d 1147, 1160 (10th Cir. 2003).

      Applying Fed. R. Crim. P. 32(c)(1), this circuit “has repeatedly held that a

District Court may not satisfy its obligation by simply adopting the presentence

report as its finding.” United States v. Guzman, 318 F.3d 1191, 1198 (10th Cir.



      2
           On December 1, 2002 (after the district court sentenced Mr. Banda and
after he had filed a notice of appeal), amendments to the Federal Rules of
Criminal Procedure replaced Rule 32(c)(1) with Rule 32(i)(3). Rule 32(i)(3)(B)
states that “for any disputed portion of the presentence report or other
controverted matter” during sentencing, the court must “rule on the dispute or
determine that a ruling is unnecessary either because the matter will not affect
sentencing, or because the court will not consider the matter in sentencing.” Fed.
R. Crim. P. 32(i)(3) (2003). “This new rule attempts to eliminate confusion over
whether courts were required to make rulings on every objection to the PSR or
only those that have the potential to affect the sentence.” United States v.
Darwich, 337 F.3d 645, 666 (6th Cir. 2003) (citing Fed. R. Crim. P. 32 (i)(3)
advisory committee’s notes). “The new rule makes clear that controverted matters
at sentencing only require a ruling if the disputed matter will affect the eventual
sentence.” Id. Additionally, “[t]he new rule’s clarity is designed to ‘narrow [ ]
the requirement for court findings to those instances when the objection addresses
a controverted matter.’” Treadway, 328 F.3d 878 at 885 n.3 (6 th Cir. 2003) (citing
Fed. R. Crim. P. 32(i)(3) advisory committee’s notes).
       Both versions of the rule impose substantially the same obligations upon
the sentencing court. See Darwich, 337 F.3d at 666 (stating that “[p]rior to these
revisions, we already had interpreted the rule in a manner consistent with Rule
32(i)(3)’s recent clarification”). Our analysis thus applies to the version of the
rule in effect at the time of Mr. Banda’s sentence, Fed. R. Crim. P.32(c)(1), and
the current version of the rule, Fed. R. Crim. P. 32(i)(3).

                                          -9-
2003); Pedraza, 27 F.3d at 1530-31 (“When faced with specific allegations of

factual inaccuracy [in the presentence report] by the defendant, the court cannot .

. . simply stat[e] that it adopts the factual findings and guideline application in the

presentence report. If the district court fails to comply with [the rule], we must

remand for the court to either make the necessary findings and attach them to the

presentence report, or enter a declaration that it did not take the controverted

matters into account in sentencing the defendant.”) (citations omitted). 3

      Here, Mr. Banda contends that with respect both to his objections to the

determination of drug quantity and to his classification as a leader or organizer of

the charged conspiracy pursuant to USSG § 3B1.1, the district court merely

adopted the conclusions of the presentence report without making its own

findings, thereby failing to comply with Fed. R. Crim. P. 32 (c)(1). In response,



      3
         For example, in Guzman, the district court set forth the following
conclusion regarding the defendant’s objections to the presentence report:

      The presentence report writer reviewed the police reports and the
      information asserted in defendant’s objection. He determined that the
      police reports were supported by an objective witness . . . .He found the
      reports more credible than the claims of defendant and defendant’s
      wife. We believe a preponderance of the evidence supports the
      conclusion of the presentence report writer. Accordingly, the court
      denies the objection to the presentence report.

Guzman, 318 F.3d at 1197. We concluded that these district court findings were not
sufficient to comply with Fed. R. Civ. P. 32(c)(1). See id. at 1198.



                                          -10-
the government argues that Mr. Banda made “only the most general allegations of

factual inconsistencies.” Aple’s Supl. Br. at 6. The government cites cases

indicating that “[t]o successfully invoke the fact-finding obligation of Rule

32(c)(1), the defendant must make ‘specific allegations of factual inaccuracy.’”

See id. at 5-6 (citing United States v. Garcia, 24 Fed. Appx. 872, 876 (10th Cir.

Nov. 2001)).

      Upon review of Mr. Banda’s objections to the presentence report’s

determination of drug quantity, we conclude that Mr. Banda contested certain of

the stated facts with the specificity necessary to trigger the district court’s fact-

finding obligations under Rule 32(c)(1). In particular, in objections 3-7, 10-12,

14-15, and 17-29, see Rec. vol. I, doc. 95 (Objection to PSI, filed July 31, 2001),

and in supplemental objections 3-7, see Rec. doc. 98 (Supplemental Objections to

PSI,, filed Aug. 16, 2001), Mr. Banda disputed specific facts set forth in the

presentence report. Most of the disputed facts concern the amount of drugs

involved and the degree of Mr. Banda’s participation in various aspects of the

charged conspiracy. However, although the district court commented on some of

Mr. Banda’s objections, the court did not rule on all them. Accordingly, the

court’s adoption of the presentence report is insufficient to comply with the

court’s fact-finding obligations. See Guzman, 318 F.3d at 1197-98; United States

v. Jones, 168 F.3d 1217, 1221-22 (10th Cir. 1999) (remanding for further findings

when the district court “summarily overruled Defendant’s objections”); Pedraza,

                                          -11-
27 F.3d at 1530 (remanding for resentencing when the district court failed to

make “written findings as to each allegation [of factual inaccuracies in the

presentence report]”). We must therefore remand this case to the district court so

it may rule on Mr. Banda’s specific objections or “determine that a ruling is

unnecessary either because the matter will not affect sentencing, or because the

court will not consider the matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B).

      However, as to Mr. Banda’s objections to his characterization as a leader or

organizer under USSG § 3B1.1, the district court did make findings. 4

The court stated that “[t]he evidence before the court clearly indicates that [Mr.

Banda] was a leader and organizer of this conspiracy,” see Rec. doc. 142 at 4, and

it proceeded to summarize the extent of Mr. Banda’s involvement. Here, then, the

district court did comply with the governing rules.



      4
          Section 3 B1.1 provides:

         Based on the defendant’s role in the offense, increase the offense level
as follows:

             (a) If the defendant was an organizer or leader of a
             criminal activity that involved five or more participants or
             was otherwise extensive, increase by 4 levels.
             (b) If the defendant was a manager or supervisor (but not
             an organizer or leader) and the criminal activity involved
             five or more participants or was otherwise extensive,
             increase by 3 levels.
             (c) If the defendant was an organizer, leader, manager, or
             supervisor in any criminal activity other than described in
             (a) or (b), increase by 2 levels.

                                         -12-
      Nevertheless, as Mr. Banda further argues, the district court’s finding

regarding USSG § 3B1.1 is deficient in another respect. The presentence report

concluded that Mr. Banda “held a position of trust as a manager or supervisor . . .

by holding the position of ‘top lieutenant’ for Adam Guzman,” Rec. vol IV, ¶ 78,

and recommended a three-level increase in the offense level pursuant to USSG §

3B1.1(b). Based in part on that conclusion, the presentence report recommended

a total offense level of thirty-eight. However, in its written findings overruling

Mr. Banda’s objection, the district court cited USSG § 3B1.1(c), which authorizes

only a two-level increase in the offense level. That citation is inconsistent with

the court’s use of the presentence report’s recommended total offense level of

thirty-eight. Accordingly, on remand the district court should also clarify its

finding regarding the proper adjustment in the offense level pursuant to USSG §

3B1.1.



             B. Departure For Substantial Assistance under USSG 5K1.1

      In his pro se brief, Mr. Banda also argues that the district court should have

departed to a greater extent under USSG § 5K1.1, which provides that “[u]pon

motion of the government stating that the defendant has provided substantial

assistance in the investigation or prosecution of another person who has

committed an offense, the court may depart from the guidelines.” Unless the

district court misunderstood its authority to depart, we lack jurisdiction to review

                                         -13-
such a departure decision. See United States v. Busekros, 264 F.3d 1158, 1159

(10th Cir. 2001).

      Here, the record indicates that the district court understood its authority to

depart and did depart downward, although not to the extent that Mr. Banda would

have preferred. As a result, we lack jurisdiction to review this decision.



                                III. CONCLUSION

      Accordingly, for the reasons set forth above, we REMAND this case for

factual findings on the following objections to the presentence report: 3-7, 10-

12,14-15, and 17-29, as well as the following supplemental objections: 3-7, and

for further proceedings that may be warranted by those findings. The district

court should either make findings as to the facts disputed in these objections or

“determine that a ruling is unnecessary either because the matter will not affect

sentencing, or because the court will not consider the matter in sentencing.” Fed.

R. Crim. P. 32(i)(3)(B). On remand, the district court should also clarify the

court’s ruling regarding the increase in the offense level pursuant to USSG §

3B1.1. We DISMISS Mr. Banda’s challenge to the degree of downward departure

pursuant to USSG § 5K1.1.

                                       Entered for the Court,

                                       Robert H. Henry
                                       Circuit Judge


                                         -14-
