UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                        No. 94-5919

FRANK ALEXIS ROBINSON,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
John A. MacKenzie, Senior District Judge.
(CR-94-34-NN)

Argued: June 7, 1995

Decided: May 23, 1996

Before WIDENER and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion. Judge
Widener wrote a dissenting opinion.

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COUNSEL

ARGUED: James Ashford Metcalfe, Senior Litigation Coun-
sel/Assistant United States Attorney, Norfolk, Virginia, for Appellant.
Robert A. Dybing, SHUFORD, RUBIN & GIBNEY, Richmond, Vir-
ginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attor-
ney, Norfolk, Virginia, for Appellant. James S. Ellenson, Newport
News, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

A jury convicted Frank Alexis Robinson of one count of conspir-
acy to file false claims for federal income tax refunds, 18 U.S.C.
§ 286, and three counts of filing false claims, 18 U.S.C. § 287. At the
sentencing hearing, the district court denied the government's recom-
mendations for an increase of the offense level for more than minimal
planning and an upward adjustment for obstruction of justice. We
vacate the court's judgment with respect to the sentence imposed and
remand for further proceedings.

I

Robinson's Presentence Investigation Report (PSI) recommended
that his base offense level be increased for more than minimal plan-
ning pursuant to U.S.S.G. § 2F1.1(b)(2)(A). The PSI also recom-
mended that his sentence be adjusted upward for obstruction of justice
pursuant to U.S.S.G. § 3C1.1.

Prior to sentencing, Robinson objected to the recommended
enhancement for obstruction of justice. He did not object to the rec-
ommended increase of his offense level for more than minimal plan-
ning.

The district court denied the enhancement for obstruction of justice
without making any relevant findings. The court also denied the
increase for more than minimal planning. The government appeals,
alleging that the court applied the Sentencing Guidelines incorrectly.

II

At the time of sentencing, Fed. R. Crim. P. 32(c)(3)(D) (now Rule
32(c)(1)) provided that if a defendant alleges

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          any factual inaccuracy in the presentence investigation
          report . . . , the court shall, as to each matter controverted,
          make (i) a finding as to the allegation or (ii) a determination
          that no such finding is necessary because the matter contro-
          verted will not be taken into account in sentencing.

Under both the old rule and the revised rule, the district court has the
discretion either to make a finding resolving the factual dispute or to
determine that the dispute will have no effect on sentencing. But this
discretion is limited.

The governing statute, the Sentencing Guidelines, and circuit pre-
cedent require a court to impose a sentence within a specified range
unless valid reasons for departure exist. 18 U.S.C.§ 3553(b); see
U.S.S.G. § 1B1.1. To calculate the defendant's offense level and the
appropriate sentencing range under 18 U.S.C. § 3553(a), a court must
determine "the applicable category of offense committed by the appli-
cable category of defendant as set forth in the guidelines." 18 U.S.C.
§ 3553(a)(4)(A). The final offense level is determined in part by spe-
cific offense characteristics, such as more than minimal planning,
which are outlined in the Guidelines. The final offense level is also
determined in part by the applicable adjustments. See U.S.S.G.
§ 1B1.1(c). An adjustment is mandatory if the facts before the court
satisfy the Guideline criteria. United States v. Ashers, 968 F.2d 411,
414 (4th Cir. 1992). Proper application of mandatory adjustments and
offense characteristics are essential steps in calculating an appropriate
sentencing range.

If the facts in the PSI pertaining to an adjustment, an increase, or
other sentencing recommendations are controverted, Rule 32 requires
the court to make findings of fact resolving the dispute. A court has
the discretion not to resolve a contested fact only if that fact is irrele-
vant to sentencing or capable of being disregarded by the court. An
example of this second category is a situation where a court would
properly impose the same sentence regardless of the resolution of the
dispute. But a court must resolve all factual disputes that are critical
to the sentencing determination, including facts that would support a
mandatory adjustment. Otherwise, a court would be able to avoid the
mandatory nature of the Guidelines by employing discretion to dis-

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count relevant facts. This would eviscerate the Guidelines' core pur-
pose of promoting uniformity in sentencing.

The district court previously tried a number of Robinson's co-
conspirators, and it expressed the view that Robinson's punishment
should be the same as theirs. It is for this reason that it declined to
impose the additional punishment on Robinson that the government
sought.

Prior to the legislation creating the United States Sentencing
Guidelines and the promulgation of the Guidelines themselves, the
district court's decision to treat all the defendants who were involved
in this conspiracy the same would have been acceptable. The practice,
however, of a district court's well-nigh unlimited discretion in sen-
tencing, subject only to the statutory maximum, led to great discrep-
ancies in the sentences imposed by district courts throughout the
country. While some judges might agree that the sentence imposed by
the district court in this case was fair and adequate, other judges
might impose a much more severe punishment for the same conduct.
In too many instances the punishment imposed on a defendant
depended on the happenstance of which judge decided his case. It was
to remove such discrepancies that Congress directed that sentences be
imposed in accordance with the Guidelines. The district court's
attempt to equalize the punishment of all defendants who participated
in this particular scheme of tax fraud must give way to the broader
concept of equality mandated by Congress and the Guidelines that
takes into consideration not only the seriousness of the offense but the
proven, relevant characteristics of each defendant.

Robinson did not object to the two-level increase for more than
minimal planning. If the uncontroverted facts support a two-level
increase under U.S.S.G. § 2F1.1(b)(2)(A), the court should increase
Robinson's offense level accordingly.

The district court should also have resolved the disputed facts relat-
ing to the PSI's reference to an obstruction-of-justice adjustment.
After Robinson objected to the government's recommendation, the
court was required to resolve the factual dispute by making appropri-
ate findings of fact under Rule 32 to determine whether Robinson had

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engaged in the obstruction-of-justice conduct outlined in U.S.S.G.
§ 3C1.1.

We remand for findings on the controverted obstruction-of-justice
facts. If the facts support the obstruction-of-justice adjustment, the
district court must enhance the sentence by two levels. See U.S.S.G.
§ 3C1.1. If the uncontroverted facts justify the increase for more than
minimal planning, the district court must also apply this two-level
increase on remand. See U.S.S.G. § 2F1.1(b)(2)(A).

VACATED AND REMANDED

WIDENER, Circuit Judge, dissents.

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