Defendant must make specific allegations of factual inaccuracy in presentence report to trigger district court’s fact-finding obligation under Rule 32

SENTENCING United States v. Cereceres-Zavala, No. 05-2191, ___ F.3d ___ (10th Cir. Aug 28, 2007)(New Mexico). Appeal of sentence for illegal reentry to United States after having been previously convicted of an aggravated felony in violation of 8 U.S.C. § 1326. HELD: To invoke district court’s fact-finding obligation under Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure, defendant must make specific allegations of factual inaccuracy in presentence report. District court is not required to make Rule 32 findings where issues raised by defendant do not involve factual inaccuracies in presentence report, but instead raise legal objections to court’s sentencing determination or challenge court’s application of sentencing guidelines to facts, and not facts themselves. Because defendant only challenged presentence report’s legal conclusion that Texas conviction for “engaging in organized criminal activity” was crime of violence, rather than disputing factual inaccuracies in presentence report, district court was not required to make Rule 32(i)(3)(B) findings with respect to defendant’s contentions. Read the opinion here.