UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-6322

CARL ALLEN WARMACK,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-86-28-R, CA-95-239-R)

Submitted: December 31, 1996

Decided: February 4, 1997

Before MURNAGHAN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Carl Allen Warmack, Appellant Pro Se. Thomas Jack Bondurant, Jr.,
Assistant United States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Carl Allen Warmack, a federal prisoner, was sentenced on Febru-
ary 4, 1987, based upon his participation in a drug importation con-
spiracy. At his sentencing hearing, Warmack's counsel objected to the
probationer officer's assessment in the presentencing investigation
report (PSR) that he had an ongoing relationship with the conspira-
cy's leaders prior to the Government's investigation beginning in
November 1985, thereby indicating that Warmack's role in the con-
spiracy was more extensive. Rather than making a finding as to the
accuracy of the probation officer's assessment or a determination that
no finding was necessary (because the controverted matter would not
be taken into account in sentencing) the district court specifically
declined to make a factual finding on the matter stating, "Well, this
is just the probation officer's assessment, and I'm going to let it stand
as is."

In his motion under 28 U.S.C. § 2255 (1994), amended by Antiter-
rorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,
110 Stat. 1214, Warmack alleges that the district court erred by fail-
ing to comply with Fed. R. Crim. P. 32(c)(3)(D) and that his counsel
was ineffective for failing to raise this issue in his direct appeal. For
the reasons that follow we affirm in part, vacate in part, and remand.

Rule 32(c)(3)(D)* of the Federal Rules of Criminal Procedure pro-
vides a means for a defendant to ensure that his PSR is factually accu-
rate and that a record of the resolution of disputed facts is available:

           If the comments of the defendant and the defendant's coun-
           sel or testimony or other information introduced by them
           allege any factual inaccuracy in the presentence investiga-
           tion report or the summary of the report or part thereof, the
           court shall, as to each matter controverted, make (i) a find-
           ing as to the allegation, or (ii) a determination that no such
_________________________________________________________________
*Because the crime was committed prior to November 1, 1987, we
refer to the former Rule 32(c)(3)(D), as it existed prior to amendment by
Pub. L. 98-473.

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          finding is necessary because the matter controverted will not
          be taken into account in sentencing. A written record of
          such findings and determinations shall be appended to and
          accompany any copy of the presentence investigation report
          thereafter made available to the Bureau of Prisons or the
          Parole Commission.

A defendant waives most nonconstitutional Rule 32 errors by fail-
ing to raise them on direct appeal. United States v. Emmanuel, 869
F.2d 795, 796 (4th Cir. 1989). However, a district court's failure to
append findings about disputed portions of the presentence report can
be raised in a § 2255 motion. See United States v. Miller, 871 F.2d
489-90, n.1 (4th Cir. 1989). In Miller, the defendant filed a motion in
the district court five months after judgment was entered against him,
claiming that the court failed to append to the PSR a written determi-
nation that it would not take a controverted matter into account at sen-
tencing. Id. This court construed the defendant's motion as a properly
filed § 2255 motion and remanded the case to the district court to
append its written determination in accordance with Rule 32. Id.

Because the trial court failed to make such findings in this case, we
vacate the district court's order dismissing Warmack's claim and
remand it to the district court so that it can make a determination,
reduce it to writing, and attach the written findings to the PSR. Fed.
R. Crim. P. 32(c)(3)(D); Miller, 871 F.2d at 489. Because we have
granted Warmack relief on his Rule 32 claim, we affirm the district
court's dismissal of his ineffective assistance of counsel claim based
on a failure to show prejudice. See Strickland v. Washington, 466 U.S.
668, 697 (1984) (if it is easier to dispose of an ineffective assistance
claim on lack of prejudice, a court may bypass consideration of the
attorney's performance). We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED
IN PART, AND REMANDED

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