                                   ___________

                                   No. 95-2675
                                   ___________

United States of America,               *
                                        *
     Plaintiff - Appellee,              *
                                        * Appeal from the United States
     v.                                 * District Court for the
                                        * District of Minnesota.
Melford Burke, Jr.,                     *
                                        *
     Defendant - Appellant.             *
                                   ___________

                      Submitted:   December 12, 1995

                          Filed:   April 8, 1996
                                   ___________

Before BOWMAN and LOKEN, Circuit Judges, and SCHWARZER,* District Judge.
                               ___________


LOKEN, Circuit Judge.


     Once again, we deal with a sentencing appeal in which an Assistant
U.S. Attorney failed to comply with our cases holding that, when fact
statements in a presentence investigative report (PSR) are challenged by
the defendant, the PSR itself is not evidence and the government must prove
those facts at the sentencing hearing.       See Fed. R. Crim. P. 32(c)(1).
Once again, we remand for resentencing, as we did in United States v.
Beatty, 9 F.3d 686 (8th Cir. 1993), and numerous other cases.




     *
      The HONORABLE WILLIAM W. SCHWARZER, United States District
     Judge for the Northern District of California, sitting by
     designation.
       Melford Burke pleaded guilty to abusive sexual contact with a minor
female in violation of 18 U.S.C. § 2244(a)(1) (1993).1    His plea agreement
noted that this offense carries a maximum ten-year prison sentence, recited
that the actual sentence would be determined by the district court, and
then stated that the parties "concur . . . with respect to the following
sentencing factors":


   ! Burke's abusive sexual contact offense should have a base
     offense level of twelve under USSG § 2A3.4(a)(2). He warrants
     a four-level increase because the victim was under twelve years
     old, and a two-level increase because she was in Burke's care
     or custody. See §§ 2A3.4(b)(1) and (3).

   ! Burke should receive a two-level reduction for acceptance of
     responsibility, see § 3E1.1(a), resulting in a base offense
     level of sixteen.

   ! His criminal history category should be IV, producing            a
     guidelines sentencing range of 33 to 41 months in prison.


The government further agreed to dismiss two more serious charges stemming
from the same offense conduct, aggravated sexual abuse of the child in
violation of 18 U.S.C. § 2241(c), and sexual abuse of the victim in
violation of § 2242(2)(A).     Under the 1993 statutes, the key difference
between "sexual abuse" and the less serious "sexual contact" was that
sexual abuse required proof of penetration.    See 18 U.S.C. §§ 2245(2) and
(3).       The Guidelines cross reference the two crimes -- § 2A3.4(c)(1)
provides that, if the abusive sexual contact involved criminal sexual
abuse, defendant's sentence should be determined under § 2A3.1, which has
a much higher base offense level of twenty-seven.


       The probation officer who prepared Burke's PSR disagreed with the
sentencing analysis in his plea agreement.    First, the PSR recommended that
Burke's base offense level be determined under




       1
      The relevant statutes were amended following Burke's August
1993 offense. All statutory citations are to the 1993 statutes.

                                     -2-
§ 2A3.1 because he sexually abused the victim.               In describing Burke's
offense conduct, the PSR stated:


        On June 7, 1994 . . . the victim related [to police
        investigators] she had been touched sexually by the defendant
        on several occasions and, on one occasion, the defendant had
        intercourse with her which was witnessed by the victim's nine-
        year-old sister.

                                 *   *    *     *   *

        On June 28, 1994 . . . the victim related [to a clinical
        psychologist] that the defendant penetrated her vagina with his
        fingers and penis.

                                 *   *    *     *   *

        On July 18, 1994, both the victim and her sister were again
        evaluated and both provided statements that were "highly
        consistent" with their June 28, 1994, statements.


With applicable adjustments, this change resulted in a recommended base
offense level of thirty rather than sixteen.            Second, the PSR recommended
that Burke be placed in criminal history category V.               It listed fifteen
prior convictions, resulting in twelve CHC points, plus about forty tribal
court convictions that are not counted but may be considered in determining
the adequacy of Burke's criminal history category under § 4A1.3(a).              Based
upon these changes, the PSR recommended a guidelines range of 151 to 188
months in prison, capped by the statutory maximum of 120 months.


        Complying   with   the   procedures    prescribed    in   Fed.   R.   Crim.   P.
32(b)(6)(B) and (C), Burke filed written objections to the PSR, and the
probation officer filed a written response.         Burke objected "to the facts"
that state he committed sexual abuse; the probation officer replied that
the investigative materials upon which he relied were "more probable, than
not."      Prior to sentencing, Burke also filed a "Position" pleading, as
required by D. Minn. Local R. 83.10(e), stating that he "disputes any
factual statement in the




                                         -3-
presentence investigation which supports a conclusion that sexual abuse as
opposed to sexual contact occurred."


      At sentencing, the government announced its support of the probation
officer's recommendations.     However, the prosecutor offered no evidence in
support of the disputed fact statements in the PSR, and failed to correct
the district court when it mistakenly stated that no objection had been
made to the "factual aspect" of the presentence investigation.               Based upon
this erroneous view of Burke's objections, the district court adopted the
PSR finding of sexual abuse, calculated Burke's base offense level under
§ 2A3.1(a), determined a sentencing range of 140 to 175 months, and
sentenced him to the statutory maximum of 120 months in prison plus three
years supervised release.


      On appeal, Burke argues that he objected to the PSR's factual
assertions that he sexually abused the victim, and the government offered
no   evidence   at   sentencing   in   support   of   the    challenged   assertions.
Therefore, the district court's critical finding of sexual abuse must be
set aside because:


      [O]nce a defendant objects to the presentence report, the court
      must either make a finding as to whether the disputed fact
      exists or state that it will not take the disputed fact into
      account. If the sentencing court chooses to make a finding
      with respect to the disputed facts, it must do so on the basis
      of evidence, and not the presentence report.


United States v. Greene, 41 F.3d 383, 386 (8th Cir. 1994) (emphasis added,
citations omitted).


      In   response,   the   government   argues      that   Burke   "made    extensive
admissions" under oath at his change of plea hearing.                But he admitted
conduct constituting abusive sexual contact, not criminal sexual abuse.
In other words, his admissions were consistent with the plea agreement's
approach to sentencing but do not support the




                                        -4-
PSR's more punitive analysis.       The government also argues that Burke failed
to preserve this issue by requesting an evidentiary sentencing hearing
under D. Minn. Local R. 83.10(f).         However, when the error at sentencing
results from the government's failure to prove PSR fact statements to which
the defendant timely objected, that error is not excused because defendant
failed to request a hearing.        See United States v. Hammer, 3 F.3d 266, 271-
72 (8th Cir. 1993), cert. denied, 114 S. Ct. 1121 (1994); United States v.
Wise, 976 F.2d 393, 404 (8th Cir. 1992) (en banc), cert. denied, 507 U.S.
989 (1993).      It is the government that needed a hearing.


     We note that the PSR's recommendation regarding sexual abuse was
based upon what the child victim had allegedly told police investigators
and mental health professionals.          It is likely that these professionals
made written reports summarizing their interviews with the victim.               It is
also likely that some combination of these reports and live testimony by
the professionals would be admissible at sentencing and, if found reliable
and credible, would be sufficient to establish the fact of sexual abuse for
sentencing purposes.     See United States v. Knife, 9 F.3d 705, 706-07 (8th
Cir. 1993).


     We also note that, just prior to imposition of sentence, Burke's
sister, the victim's mother, made a statement vilifying Burke for raping
the victim in the presence of her younger sister, and for threatening to
harm the young girls if they disclosed what he had done.            We further note
that the PSR refers to medical evidence supporting a claim that the victim
had been sexually abused.     Given the probable existence of reliable victim
hearsay establishing sexual abuse, with supporting medical evidence, the
government will probably be able to prove at a sentencing hearing that
Burke's   base    offense   level    should    be   determined   under   §   2A3.1(a).
Moreover, because Burke's statutory maximum sentence is twenty months less
than the bottom of his guidelines range as initially determined by the
district court, the odds are that




                                         -5-
resentencing will not provide relief from his 120-month sentence.   But the
government erred at Burke's sentencing, and he has the right to insist that
he be sentenced on an adequate record.


     The judgment of the district court is reversed and the case is
remanded for resentencing.   Resentencing will not violate Burke's rights
under the Double Jeopardy Clause of the Fifth Amendment.    See Woodall v.
United States, 72 F.3d 77, 79 (8th Cir. 1995).


     A true copy.


           Attest:


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




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