                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA                        No. 08-50446
               Plaintiff-Appellant,                D.C. No.
               v.                            2:08-cr-00099-GW-
DENNIS BURKHOLDER,                                     1
              Defendant-Appellee.
                                                  OPINION

        Appeal from the United States District Court
           for the Central District of California
         George H. Wu, District Judge, Presiding

                 Argued and Submitted
          November 4, 2009—Pasadena, California

                      Filed January 8, 2010

       Before: Myron H. Bright* Harry Pregerson, and
              Ronald M. Gould, Circuit Judges.

                    Opinion by Judge Bright




   *The Honorable Myron H. Bright, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.

                                607
                UNITED STATES v. BURKHOLDER               609




                         COUNSEL

Thomas P. O’Brien, United States Attorney, Christine C.
Ewell, Assistant United States Attorney, and Anne M. Voigts
(argued), Assistant United States Attorney, Los Angeles, Cali-
fornia, for the plaintiff-appellant.

James W. Spertus (argued), Los Angeles, California, for the
defendant-appellee.
610              UNITED STATES v. BURKHOLDER
                         OPINION

BRIGHT, Circuit Judge:

   In June 2008, appellee Dennis Burkholder pleaded guilty to
a single count of possession of child pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B). The plea agreement contem-
plated a sentence of 41 months. At sentencing, the district
court struck several written victim impact statements attached
to the presentence investigation report (PSR), granted
Burkholder a downward variance because of his poor health,
and imposed a 30-month sentence.

   The government appeals the sentence, asserting the district
court procedurally erred when it struck the victim impact
statements from the PSR thereby denying the victims their
right to be reasonably heard under the Crime Victims’ Rights
Act (CVRA), 18 U.S.C. § 3771, and violating Rule 32 of the
Federal Rules of Criminal Procedure (Rule 32). We affirm for
the following reasons: (1) the right to be reasonably heard
does not require that written victim impact statements remain
attached to the PSR that is forwarded to the prison authorities
and (2) the district court did not violate Rule 32.

         I.   Background and Procedural History

   Between November and December 2006, Burkholder pur-
chased subscriptions to at least two commercial internet sites
that offered child pornography to their members. Law
enforcement discovered Burkholder’s memberships and
obtained a search warrant for his home. Burkholder cooper-
ated with the search, telling the agents that he downloaded the
pictures to his computer and deleted the pictures after saving
many on compact discs. In total, Burkholder possessed more
than 600 images of child pornography. In January 2008, a fed-
eral grand jury indicted Burkholder, charging him with one
count of possession of child pornography in violation of 18
U.S.C. § 2252A(a)(5)(B). Burkholder pleaded guilty pursuant
                 UNITED STATES v. BURKHOLDER                 611
to a plea agreement, and the court ordered preparation of a
PSR before the September 2008 sentencing hearing.

   The PSR was disclosed on August 6, 2008, and included
summaries of two written victim impact statements (the let-
ters). Although the PSR stated that copies of the letters were
attached to the PSR, copies of the letters were included only
with the PSR sent to the district court. And though the PSR
mentioned two letters, the district court received five letters
in total, none of which Burkholder received before sentenc-
ing.

  At the outset of the sentencing hearing, the district court
indicated its intent to strike the letters from the PSR:

       The Probation Report also includes . . . these let-
    ters. Frankly, I don’t know what they’re for. They’re
    not related to this particular case. And I looked at
    them. And they’re a little confusing. The court
    would strike the letters.

  The government responded that the letters were authored
by children depicted in the images Burkholder possessed. The
government explained that a number of the images found on
Burkholder’s computer matched children known through a
database at the National Center for Missing and Exploited
Children.

   Burkholder moved to strike the letters as generic and
because he had not seen them. The district court expressed
concern with the letters’ detailed descriptions of harm caused
by the abuse, not just the harm suffered when a person was
found possessing images of the abuse. The court stated that
the letters concerned conduct unrelated to the defendant and
that it was obvious that the children would be distressed by
the images Burkholder possessed. The government responded
that it submitted the letters because victims have a statutory
right to be heard.
612                UNITED STATES v. BURKHOLDER
   The district court struck the letters from the PSR. The court
stated it understood that child pornography is not a victimless
crime, but nonetheless concluded:

      I don’t think it necessitates the addition of the letters
      themselves in the probation report . . . . [I]t seems
      that [the letters] add[ ] a[n] element, which I guess
      isn’t really applicable aside from just the basic argu-
      ment that you make in regards to the fact of victim
      harm . . . . So, I will strike the attached letters.

   Later in the sentencing hearing, in response to Burkholder’s
request for a mechanism to ensure that the letters were struck
from the PSR, the court stated, “When I say I’m striking it,
. . . I am excluding the letters from the report . . . . so they
are not included in the materials that are sent to the prison
. . . .”

   After hearing argument about whether Burkholder’s health
should affect his sentence, the district court varied from the
guidelines and the 41-month sentence contemplated in the
plea agreement, and imposed a 30-month sentence followed
by fifteen years of supervised release. The government timely
appeals the sentence, arguing the district court violated the
victims’ rights under the CVRA and erred under Rule 32. The
government seeks a remand for a resentencing and to allow
the written victim impact statements to be reattached to the
PSR.

                         II.   Discussion

A.    The Crime Victims’ Rights Act

   The government argues the district court denied the victims
their right under the CVRA to be reasonably heard when it
struck the letters from the PSR. Whether the statutory right to
be reasonably heard requires the continuing attachment of
written victim impact statements to a PSR is a matter of first
                 UNITED STATES v. BURKHOLDER                 613
impression and one of statutory interpretation. We review
matters of statutory interpretation de novo. United States v.
Lincoln, 277 F.3d 1112, 1113 (9th Cir. 2002).

   The CVRA makes crime victims participants in the crimi-
nal process. Kenna v. U.S. Dist. Ct., 435 F.3d 1011, 1013 (9th
Cir. 2006). It establishes eight different rights held by crime
victims and allows both the government and the victim to
enforce those rights. Id. (citing 18 U.S.C. § 3771(a), (d)(1)).
The right at issue here provides that crime victims have “[t]he
right to be reasonably heard at any public proceeding in the
district court involving release, plea, sentencing, or any parole
proceeding.” 18 U.S.C. § 3771(a)(4). The CVRA defines
“crime victim” as “a person directly and proximately harmed
as a result of the commission of a Federal offense . . . . In the
case of a crime victim who is under 18 years of age . . . family
members . . . may assume the crime victim’s rights.” Id.
§ 3771(e).

   The government first argues that children portrayed in por-
nographic images are the crime victims of those who possess
or distribute the pornographic images, and therefore have
rights under the CVRA. We consider this argument.

   Burkholder agrees that the authors of the letters had the
right to be reasonably heard at his sentencing. He asserts,
however, the district court’s actions did not violate the
authors’ rights under the CVRA. Additionally, the district
court recognized that the children depicted in the images
Burkholder possessed were victims of Burkholder’s crime.
Thus, no dispute exists here that the letter writers qualify as
crime victims. Here the record reflects that the district court
read and considered the letters. Thus, in fact, the sentencing
judge heard those crime victims to the extent that he could do
so in this case.

  The further question here is whether the CVRA required
continuing attachment of the letters to the PSR or, said
614                UNITED STATES v. BURKHOLDER
another way, prohibited the district court from striking the let-
ters from the PSR during the sentencing hearing.

   [1] We first examine the language of the CVRA and
observe that the CVRA does not define the “right to be rea-
sonably heard.” The right simply provides crime victims the
“right to be reasonably heard at any public proceeding”
involving sentencing. Id. § 3771(a)(4). Nothing in the statute
plainly requires appending written victim impact statements
to a PSR.

   [2] Nor does the government’s position find support in the
CVRA’s legislative history. That history suggests that Con-
gress was concerned with ensuring that crime victims be
allowed to speak at proceedings:

         It is not the intent of the term “reasonably” in the
      phrase “to be reasonably heard” to provide any
      excuse for denying a victim the right to appear in
      person and directly address the court. Indeed, the
      very purpose of this section is to allow the victim to
      appear personally and directly address the court.
      This section would fail in its intent if courts deter-
      mined that written, rather than oral communication,
      could generally satisfy this right. On the other hand,
      the term “reasonably” is meant to allow for alterna-
      tive methods of communicating a victim’s views to
      the court when the victim is unable to attend the pro-
      ceedings. . . . In short, the victim of crime, or their
      counsel, should be able to provide any information,
      as well as their opinion, directly to the court con-
      cerning the release, plea, or sentencing of the
      accused. This bill intends for this right to be heard
      to be an independent right of the victim.

        It is important that the “reasonably be heard” lan-
      guage not be an excuse for minimizing the victim’s
      opportunity to be heard. Only if it is not practical for
                 UNITED STATES v. BURKHOLDER                 615
    the victim to speak in person or if the victim wishes
    to be heard by the court in a different fashion should
    this provision mean anything other than an in-
    person right to be heard.

150 Cong. Rec. S10910, S10911 (daily ed. Oct. 9, 2004)
(statement of Sen. Kyl) (emphasis added). This statement by
one of the CVRA’s primary sponsors explains that the CVRA
provides victims the opportunity to communicate directly to
the district court; it does not specifically require a district
court to append a written statement to a PSR. Here, the vic-
tims chose to exercise their right by submitting written victim
impact statements, which, as we have noted, were examined
and considered by the district court.

   Moreover, our decision in Kenna does not support the gov-
ernment’s position. Kenna concerned a district court’s denial
of a victim’s request to speak at sentencing. 435 F.3d at 1013-
14. This court held that the “right to be reasonably heard”
means that “the district court must hear from the victims, if
they choose to speak . . . . Victims now have an indefeasible
right to speak, similar to that of the defendant . . . .” Id. at
1016. The ruling by the district court that the right does not
require attaching written victim impact statements to a PSR
comports with Kenna’s description of the right to be reason-
ably heard as an “indefeasible right to speak.”

   [3] The action by the district court does not frustrate the
objectives of the CVRA as outlined in Kenna: (1) ensuring
that the district court doesn’t discount the impact of the crime
on the victims; (2) forcing the defendant to confront the
human cost of his crime; and (3) allowing the victim to regain
a sense of dignity and respect rather than feeling powerless
and ashamed. Id. Certainly, a victim can achieve these aims
by submitting a written impact statement describing the
effects of a defendant’s crime. But the efficaciousness of
these goals is not furthered by mandating that written victim
impact statements be permanently attached to a PSR. In sum,
616                 UNITED STATES v. BURKHOLDER
we find no support for understanding the right to be reason-
ably heard as necessitating the continuing attachment of writ-
ten victim impact statements to a PSR.

  Here, the victims chose to assert their right to be reasonably
heard by submitting written statements. The letters discussed
at length the effects of child abuse, not committed by
Burkholder, as well as the impact of the pornographic images.
The district court considered the letters and determined that
much of their content did not relate to Burkholder’s acts. The
court then struck the letters from the PSR so that they would
not be included in the materials sent to the Bureau of Prisons.

   [4] On this record, we hold that the district court did not
violate the right to be reasonably heard by striking the written
victim impact statements from the PSR during the sentencing
process after reading and considering the letters.

B.    Rule 32

   The government argues the district court violated Rule 32
by striking the victim impact statements from the PSR, assert-
ing that Rule 32 explicitly requires that the PSR include vic-
tim impact information. This court reviews a district court’s
compliance with Rule 32 de novo. United States v. Baldrich,
471 F.3d 1110, 1112 (9th Cir. 2006).

   [5] When Burkholder was sentenced in September 2008,
Rule 32 required that a PSR contain “verified information,
stated in a nonargumentative style, that assesses the financial,
social, psychological, and medical impact on any individual
against whom the offense has been committed.” Fed. R. Crim.
P. 32(d)(2)(B) (2008).1 Before imposing sentence, a district
  1
    Amendments to Rule 32 took effect on December 1, 2008. The portion
of the rule quoted above now states, “information that assesses any finan-
cial, social, psychological, and medical impact on any victim.” Fed. R.
Crim. P. 32(d)(2)(B). We examine Rule 32 as it existed at Burkholder’s
sentencing. See United States v. Thomas, 355 F.3d 1191, 1200 (9th Cir.
2004) (examining Rule 32 in effect at the time of sentencing).
                    UNITED STATES v. BURKHOLDER                      617
court must “address any victim of a crime of violence or sex-
ual abuse who is present at sentencing and must permit the
victim to speak or submit any information about the sen-
tence.” Fed. R. Crim. P. 32(i)(4)(B). A district court must rule
on any disputed portion of the PSR or other controverted mat-
ter unless it determines that a ruling is unnecessary. Fed. R.
Crim. P. 32(i)(3)(B).

   Here, the government provided five letters to the district
court, two of which were provided to the Probation Office and
commented on in the PSR. The PSR explains the sexual abuse
the children suffered (which was not perpetrated by
Burkholder) and their feelings of embarrassment and contin-
ued violation in learning their pictures were on the Internet.2
Burkholder moved to strike the statements attached to the
PSR as generic and because he had no opportunity to view
them before sentencing. None of the victims were present at
sentencing.

   We first address the government’s reliance on this court’s
per curiam decision in United States v. Santana, 908 F.2d 506
(9th Cir. 1990). In that case, the court concluded that a district
court’s consideration of a victim impact statement at sentenc-
ing in a non-capital case did not violate the Supreme Court’s
holding in Booth v. Maryland, 482 U.S. 496 (1987). Santana,
908 F.2d at 507. A district court’s authority to strike matters
from the PSR was neither presented nor addressed in Santana.
Thus, Santana is not relevant here.

   The government next argues that Rule 32(d)(2)(B) requires
that a PSR include information on the impact of the crime on
the victim, and Rule 32(i)(4)(B) requires that courts must per-
mit victims to speak or submit information about the sentence.
Therefore, argues the government, the district court could not
  2
    The government asserts that the court struck the paragraphs in the PSR
summarizing two of the letters. However, nothing in the sentencing tran-
script or elsewhere in the appellate record supports that assertion.
618              UNITED STATES v. BURKHOLDER
strike the letters from the PSR without violating the explicit
commands of Rule 32. We disagree.

   First, none of the victims were present at sentencing and
the victims were permitted to submit information to the dis-
trict court. Therefore, the district court did not violate Rule
32(i)(4)(B).

   Rule 32(i)(3)(B) requires a court to rule on disputed por-
tions of a PSR or other controverted matters, unless the court
determines that a ruling is unnecessary. The court followed
the requirements of Rule 32(i)(3)(B). The district court found
that the letters concerned conduct unrelated to the defendant.
However, the court understood that child pornography was
not a victimless crime.

   [6] In support of his motion to strike the letters, defense
counsel stated, “these presentence reports follow defendants
around for the rest of their lives. They are used for all evalua-
tions.” After considering the letters, the court struck them
from the PSR, stating, “I am excluding the letters from the
report. And so . . . they are not included in the materials that
are sent to the prison, et cetera.” On this record, the govern-
ment has not shown that the district court erred under Rule 32.

  [7] Based on the record in this case, we determine that the
sentencing judge did not err. Accordingly, we AFFIRM.
