                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   __________
                                   No. 01-1480
                                   __________

United States of America,              *
                                       *
      Appellee,                        *
                                       * Appeal from the United States
                                       * District Court for the Western
                                       * District of Missouri
      v.                               *
                                       *
Joshua D. Stapleton,                   *
                                       *
      Appellant.                       *
                                   __________

                             Submitted: June 12, 2001

                            Filed: September 12, 2001
                                   __________

Before LOKEN, HALL,1 and ROSENBAUM,2 Circuit Judges.
                                   __________
HALL, Circuit Judge.


       Defendant Joshua Stapleton challenges his sentence for unlawful possession of
a firearm by a convicted felon under 18 U.S.C. § 922(g). In calculating Stapleton’s


      1
       The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
      2
        The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota, sitting by designation.
criminal history score under the sentencing guidelines, the district court relied solely
on a presentence report (“PSR”). Both before and during sentencing, Stapleton
objected that the PSR wrongly counted two municipal convictions and a 1992 juvenile
adjudication in calculating his criminal history category. He argues that the district
court is required to do more at sentencing than adopt the factual findings proposed by
a probation officer in a PSR when those factual findings are in dispute. We agree.

       A specific objection to a statement in a PSR triggers a district court’s obligation
to make a finding as to the factual dispute. See Fed. R. Crim. P. 32(c); United States
v. Arrington, 215 F.3d 855, 867 (8th Cir. 2000). In making its finding, the district court
is bound to “do so on the basis of the evidence and not the presentence report” because
“the presentence report is not evidence and not a legally sufficient bas[i]s for making
findings on contested issues of fact.” United States v. Greene, 41 F.3d 383, 386 (8th
Cir. 1994).

       Stapleton objects to the PSR’s account of his previous convictions for two
reasons. First, he contends that he never pled guilty to the two municipal convictions.
Second, he maintains that he did not serve any part of his 1992 juvenile conviction
within five years of the commission of the instant offense, and, therefore, it should not
be counted towards his criminal history score. See U.S.S.G. § 4A1.2(d)(2)(A). Here,
the sentencing judge did note Stapleton’s objections and gave his counsel the
opportunity to speak to them in court. The judge, thereafter, asked the probation
officer who wrote the PSR for his response. But while the judge or Stapleton’s counsel
occasionally asked the probation officer follow up questions, no further inquiry was
made.

      We recognize that the Sentencing Guidelines do not mandate a full evidentiary
hearing when a defendant disputes a PSR’s factual representation. See U.S.S.G. §
6A1.3, commentary (explaining that “[w]ritten statements of counsel or affidavits of
witnesses may be adequate under many circumstances” for settling a factual dispute

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about a factor important to the sentencing determination). But some investigation and
verification of the disputed statements in the PSR is required. The government admits
that it presented no evidence regarding either the municipal convictions or the juvenile
adjudications other than the statements offered by the probation officer in response to
the court’s questions.

        The probation officer was not under oath at the sentencing hearing and
Stapleton’s counsel did not have an opportunity to cross-examine him. We do not find
this to be a sufficient basis for resolving the factual disputes over the PSR’s accounts
of the prior convictions. Cf. United States v. Wise, 976 F.2d 393, 404-05 (8th Cir.
1992) (holding that a trial judge’s decision to put the probation officer who wrote a
presentence report under oath during the sentencing hearing and allow the defense to
voice its objections and cross examine the probation officer was constitutionally
sufficient). When a defendant contests facts alleged in a PSR, the government must
produce evidence to convince the sentencing court that its position is correct. See
United States v. Hammer, 3 F.3d 266, 268 (8th Cir. 1993). The government claims that
it has evidence to support its version of the facts; if so, the government should be
required to present this evidence to the court instead of relying on unsubstantiated
statements in a PSR. The district court erred in not putting the government to its proper
burden in this case.

      The government contends that the terms of Stapleton’s plea agreement prevent
him from contesting the manner in which he was sentenced. We read the plea
agreement differently. Although the agreement states “[t]he defendant agrees not to
appeal or otherwise challenge the constitutionality or legality of the Sentencing
Guidelines,” Stapleton objects to the trial court’s failure to conduct a hearing on
disputed evidence, not to the unconstitutionality of a particular sentencing provision.
The agreement reads: “The parties may advocate any position at the sentencing hearing
regarding any sentencing issues not addressed in this agreement.” We conclude that
Stapleton did not waive his right to challenge the sufficiency of the government’s

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evidence of his prior convictions and the sentencing court’s review of that evidence.

      Accordingly, we reverse Stapleton’s sentence and remand for a factual
determination by the district court and resentencing. The existing record should be
reopened so that both sides may submit evidence regarding the disputed convictions.

      A true copy.

                     Attest:

                           CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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