                                                                                    FILED
                               NOT FOR PUBLICATION                                   OCT 28 2010

                                                                                MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                             U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                             No. 09-30441

                Plaintiff - Appellee,                  D.C. No. 2:07-cr-00344-RSL-1

   v.
                                                       MEMORANDUM *
 CLAYTON ROUECHE,

                Defendant - Appellant.


                      Appeal from the United States District Court
                        for the Western District of Washington
                       Robert S. Lasnik, District Judge, Presiding

                          Argued & Submitted October 8, 2010
                                 Seattle, Washington

Before: THOMAS and M. SMITH, Circuit Judges, and COLLINS, District
Judge.**




        *
              This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Cir. R. 36-3.
        **
                The Honorable Raner C. Collins, United States District Judge for the District of
Arizona, sitting by designation.

                                               1
      Defendant-Appellant Clayton Roueche appeals from his sentence following

a guilty plea to conspiracy to export cocaine, conspiracy to import marijuana, and

conspiracy to engage in money laundering. The District Court for the Western

District of Washington, Judge Robert S. Lasnik presiding, sentenced Roueche to a

total term of 360 months. The parties are presumed to be familiar with the

remaining facts, and we do not recount them here except as necessary to explain

our decision. We have jurisdiction under 28 U.S.C. § 1291 and reverse and

remand for resentencing in accordance with Federal Rule of Criminal Procedure

32(i)(3).

      There are three issues on appeal: (1) whether resentencing is required under

Rule 32(i)(3) because the district court did not make findings regarding or disavow

reliance on disputed facts; (2) whether resentencing is required because the district

court abused its discretion in refusing to rule on whether it would consider the

declarations of Daniel LeClerc and Kenneth Davis; and (3) whether the district

court improperly considered crimes committed outside the United States in

fashioning its sentence.

I.    The District Court’s Compliance with Rule 32(i)(3)

      We review de novo whether a district court complied with Federal Rule of

Criminal Procedure 32. United States v. Herrera-Rojas, 243 F.3d 1139, 1142 (9th



                                          2
Cir. 2001); United States v. Tam, 240 F.3d 797, 803 (9th Cir. 2001).

      Strict compliance with Rule 32 is required. United States v. Saeteurn, 504

F.3d 1175, 1178 (9th Cir. 2007) (quoting United States v. Garfield, 987 F.2d 1424,

1428 (9th Cir. 1993) (internal citations omitted)). When a district court fails to

make the findings required under the rule, remand for resentencing is required.

Garfield, 987 F.2d at 1428. If the district court chooses not to rely on the disputed

facts, it does not need to resolve the dispute, but it must make its disavowal express

on the record. See United States v. Carter, 219 F.3d 863, 867 (9th Cir. 2000).

      Not all objections will trigger the court’s obligations under Rule 32. First,

the objection must relate to facts that would tend to affect the length of the

sentence imposed. Saeteurn, 504 F.3d at 1179-80. Second, a defendant must make

a specific factual objection. United States v. Stoterau, 524 F.3d 988, 1011 (9th Cir.

2008). A specific factual objection is one that points out factual inaccuracies, not

just recommendations, opinions, or conclusions. Carter, 219 F.3d at 867; United

States v. Lindholm, 24 F.3d 1078, 1085 n.7 (9th Cir. 1994).

      The district court here was not required to address most of Roueche’s

objections because they were not factual, specific, or related to the length of his

sentence. However, the district court was required to resolve Roueche’s objections

to parts of the LeClerc declaration and his objections concerning a wiretapped



                                           3
conversation. Specifically, the district court was required to resolve Roueche’s

objections to LeClerc’s claim that he was pressured, intimidated, or threatened into

working for the UN Gang by Roueche, and LeClerc’s claim that Roueche

supervised him. The district court was also required to resolve Roueche’s

objection to the government’s characterization of a conversation he had regarding

an extortion scheme that was captured on wiretap.

      Roueche’s objections to LeClerc’s declaration and to the wiretapped

conversation were factual and specific. Roueche challenged the accuracy of

specific facts and provided an alternate version or interpretation. These objections

were also relevant to the length of the sentence imposed since they bore directly on

his history and characteristics, which the court was required to consider under 18

U.S.C. § 3553(a)(1).

      At sentencing, the district court failed to make findings regarding LeClerc’s

declaration and wiretap conversations. Specifically, it refused to strike LeClerc’s

declaration but also assured the parties that it did not believe everything put forth

in the declaration. It also refused to rule on which version of the wiretap

conversation it accepted while affirmatively stating it would consider Roueche’s

wiretap conversations. Since we are “left guessing whether the district court

recognized, contemplated, and resolved the . . . objection[s],” remand for



                                           4
resentencing is required. United States v. Houston, 217 F.3d 1204, 1209 (9th Cir.

2000).

II.      Use of the LeClerc and Davis Declarations at Sentencing

         We review for abuse of discretion determinations regarding the reliability of

evidence for the purposes of sentencing. United States v. Felix, 561 F.3d 1036,

1040 (9th Cir. 2009), cert. denied, 130 S.Ct. 256 (2009); United States v.

Alvarado-Martinez, 556 F.3d 732, 735 (9th Cir. 2009). Failure to exercise

discretion can constitute an abuse of discretion. Caudle v. Bristow Optical Co.,

Inc., 224 F.3d 1014, 1027 (9th Cir. 2000) (quoting Miller v. Hambrick, 905 F.2d

259, 262 (9th Cir. 1990)).

         A district court has wide latitude in the evidence it can consider at

sentencing. It may consider information that would not be admissible at trial so

long as it “has sufficient indicia of reliability to support its probable accuracy.”

U.S.S.G. § 6A1.3(a).; Felix, 561 F.3d at 1042. However, it must make clear what

it is considering and what it is not. Fed. R. Crim. P. 32.

         The district court here abused its discretion when it refused to rule on

Roueche’s objections to the declarations of LeClerc and Davis while at the same

time noting that portions of the declarations were unreliable. The court was

obligated to make findings as to which portions it would consider, and its failure to



                                             5
do so was an abuse of discretion.

III.   Use of Crimes Committed Outside the United States at Sentencing

       We review the district court’s consideration of Roueche’s actions in Canada

de novo as a legal interpretation of sentencing guidelines. United States v. Azeem,

946 F.2d 13, 15 (2d Cir. 1991).

       A district court’s consideration of a defendant’s foreign actions does not

violate the presumption against extraterritorial application of American laws,

because it is not an extraterritorial application of American laws. While there is no

case law directly on point, it is helpful to note that Black’s Law Dictionary defines

“extraterritorial jurisdiction” as “a court’s ability to exercise power beyond its

territorial limits.” Black’s Law Dictionary 929 (9th ed. 2009). Under this

definition, a court must reach beyond its territorial limits to exercise power over a

case or issue that it could not otherwise reach.

       The district court here did not reach out beyond its territorial limits to hold

Roueche criminally liable for his actions in Canada by convicting him on charges

stemming from his behavior in Canada. While it is unclear to what extent the

district court did consider non-charged actions that occurred in Canada, it is also

clear that these actions were not used in setting the base offense level or to enhance

the sentencing range in any way. If the district court considered Roueche’s actions



                                            6
in Canada in forming the sentence it imposed, it was merely using that information

to create a more detailed picture of Roueche in order to impose the most

appropriate sentence. This is permissible under 18 U.S.C. § 3553(a)(1).

IV.   Conclusion

      Remand for resentencing is required in this case so that the district court can

comply with the requirements of Federal Rule of Criminal Procedure 32 and make

clear what information forms the basis of Roueche’s sentence. The district court

shall identify and rule on all specific factual objections that relate to the length of

Roueche’s sentence or make express its disavowal of the information.

      REVERSED AND REMANDED.




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