IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2484

(Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KATHY SUE PIAZZA,

Defendant-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

(April 9, 1992)

Before JONES, DUHÉ and WIENER, Circuit Judges.

WIENER, Circuit Judge.

Defendant-Appellant Kathy Sue Piazza appeals the sentence

imposed following her conviction, pursuant to her plea of guilty,

on one count of misprision of a felony, namely, the escape and

a ttempted escape of one David Phillip Ischy, in violation of

18 U.S.C. §§ 4 and 751(a) . Specifically, she complains that the

district court failed to comply with Rules 11 and 32(c)(3)(D),2

Federal Rules of Criminal Procedure, and that she rec eived

ineffective assistance of counsel. Finding that the district court

strictly and completely complied with Rule 11, we affirm Piazza's

conviction pursuant to her guilty plea; and finding that the

district court's articulation regarding the inapplicability of a

contested fact in the Presentence Investigation Report (PSR) to

Piazza's sentence constituted substantial compliance with Rule

32(c)(3)(D), we affirm her sentence as well. Finally, we find that

Piazza' s complaint of ineffective assistance of counsel is not

properly before this court.

I

FACTS

Initially, Piazza and Ischy were charged in a one-count

indictment for conspiring to effect Ischy's escape from federal

custody. That one-count indictment was superseded twice. Finally,

a criminal information was brought charging Piazza with misprision

of a felony by concealing the escape attempt. Piazza entered into

a plea agreement with the government in which she pleaded guilty to

the criminal information in exchange for the dismissal of the

original indictment and both superseding indictments.

Piazza was re-arraigned on February 1 3, 1991, at which time

the district court accepted her plea of guilty. A Presentence

Investigation Report (PSR) was prepared. Piazza filed written

objections to that portion of the P SR which showed that she had

been convicted of possession of marijuana. After determining from

its colloquy with the probation officer who prepared the PSR that3

the disputed drug conviction had not figured in the calculation of

Piazza's sentence, the distri ct court pretermitted resolution of

this factual dispute. Piazza was sentenced to six months of

imprisonment to be followed by a one-year term of supervised

release.

Piazza's counsel sought to withdraw and filed an Anders brief

raising all the three issues mentioned above. As another panel of

this court denied counsel's withdrawal based solely on the district

court's alleged violation of Rule 32 and therefore did not address

in depth the merits of the other two claims, we now address all

three issues.

II

ANALYSIS

A. Knowing and Voluntary Plea of Guilty

To determine if Piazza's plea of guilty was accepted by the

court in compliance with Rule 11, her re-arraignment must be

measured against the standard established by this court in United

States v. Dayton

, 604 F.2d 931, 943 (5t h Cir. 1979) (en banc),

cert. denied , 445 U.S. 904 (1980).

What is necessary is that the trial c ourt, given

the nat ure of the charges and the character and

capacities of the defendant, personally participate

in the colloq uy mandated by Rule 11 and satisfy

himself fully that, within those limits, the

defendant understands what he is admitting and what

h e consequences of that admission may be, a s well

as that what he is admitting constitutes the crime

charged, and that his admission is voluntarily

made.

Id. A review of Piazza's re-arraignment proceedings confirms that

the district judge's explanations and questions to Piazza were a4

model of clarity and comprehensiveness. The judge determined that

Piazza had two years of college, was without any mental defect and

was not under the influence of any type of narcotic at the time of

her plea. The district court asked counsel's opinion as to

Piazza's competence to enter a knowing plea.

The district judge carefully questioned Piazza as to her

understanding of the specific facts involved in the offense, and

she expressly acknowledged that she understood that she was charged

with misprision of a felony fo r concealing Ischy's attempt to

escape from prison. The court advised Piazza that the offense was

punishable by up to three years i n prison and a $250,000 fine as

well as a one-year term of supervised release and a mandatory

special assessment. The court also informed Piazza that she had a

right to plead not guilty and proceed to tria l aided by the

presumption of innocence, but that she would waive those rights if

she made a guilty plea. Piazza repeatedly indicated that she

understood each consequence of her plea of guilty. Responding to

the district court's questioning, Piazza acknowledged that she was

not subjected to duress in making her plea and that she had

received no promises or assurances of the sentence to be imposed or

even a guarantee of the terms of the plea agreement.

There is no indication anywhere in the record that Piazza did

not make a knowing and voluntary plea of guilty after being fully

informed of the cha rges and the consequences of the plea. S ee

Dayton

, 6 04 F.2d at 939. As such, Rule 11 was satisfied

completely.5

B. Failure to Make Findings on Disputed Facts

Piazza contends that the district court violated Rule

32(c)(3)(D) by failing to make findings regarding disputed facts.

If a defendant asserts, with specificity and clarity, that anything

within th e PSR is incorrect factually, then the sentencing judge

must make, as to each controverted matter:

"(i) a finding as to the allegation, or

(ii) a determination that no such finding

is necessary because the matter

controverted will not be taken into

account in sentencing." If the

sentencing judge "fails to make the

requisite finding or determination or if

the finding or determin ation is

ambiguous, the case must be remanded for

resentencing."

United States v. Hurtado

, 846 F.2d 995, 998 (5th Cir.), cert.

denied

, 488 U.S. 863 (1988) (quoting Rule 32(c)(3)(D) and U nited

States v. Garcia , 821 F.2d 1051, 1052 (5th Cir. 1987)).

This rule protects the defendant from being sentenced on

inaccurate information and creates an accurate record of the

factors on which the district court relied during sentencing. In

addition, the written record addressing each objection is important

because officials may cons ider information in a PSR when making

correctional determinations, including the place of the defendant's

incarceration and her relationship with correctional agencies after

she is released from prison. U nited States v. Burch

, 873 F.2d 765,

767 (5th Cir. 1989); United States v. Manotas-Mejia

, 824 F.2d 360,

368 (5th Cir.), cert. denied

, 484 U.S. 957 (1987). A failure of

the district court to comply with this rule may be raised for the

first time on appeal. Manotas-Mejia , 824 F.2d at 368.6

Here we are confronted with Piazza's allegation that the

district court committed reversible error by failing to rule on her

controversion of the PSR's allegation that Piazza had been

convicted for possession of marijuana. She filed written

objections and argued the point at the sentencing hearing. In its

brief to this court the government concedes that (1) Piazza's

objections were made with sufficient specificity and clarity to

trigger Hurtado

, and (2) the district court's failure to make an

express Rule 32(c)(3)(D) finding on this factual dispute requires

that Piazza's sentence be vacated and the case remanded for

resentencing. See H urtado

, 846 F.2d at 998. Perhaps if the

government had devoted less time to waxing poetic in its brief and

more to analyzing the transcript of the sentencing hearing, it

would not h ave been so quick to concede the need to vacate and

remand.

Rule 32(c)(3)(D) is written in the disjunctive. When the

defendant disputes a fact contained in the PSR, the district court

must articulate either (1) a finding as to the disputed fact, o r

(2) the court's determination that such a finding is not necessary

because the disputed fact will not be taken into account in

calculating the sentence. As to the controverted fact of Piazza's

marijuana conviction, the court conducted a colloquy w ith

government counsel, defense counsel and Ms. Norris, the probation

offic er who prepared the PSR. After discussing the marijuana

conviction and the question of whether the name Janice Gobel had

b een an alias used by Piazza or was in fact a roommate who7

possessed the marijuana in question, Ms. Norris told the court

"Further, [the conviction] has no bearing on the calculation of the

guideline." The court then inquired "[the conviction] has no

bearing on the calculation of the guideline?", to which government

counsel responded, "That's correct." The court concluded that part

of the colloquy with the statement, "So I amgoing to leave that

just as a contested matter. I am not going to rule on that. I am

just going to allow that to be carried with the records of the case

. . . ."

From the portion of the transcript quoted above, there can be

no conclusion but that the district court determined "that no such

findi ng is necessary because the matter controverted will not be

taken into account at the sentencing." That such a conclusion was

legally correct is proved by the facts of the case and the

provisions of the guidelines: If the PSR was correct about the

prior conviction, the single poin t was correctly included in

calculating the defendant's criminal history; if not, the score

would be zero instead of one

. But either way, Piazza's criminal

history category would be I, producing the same sentencing range of

0-6 months.

Rule 32(c)(3)(D) does not require the district court to mouth

any particular magic words or to make a talismanic incantation of

the exact phraseology of the rule; it suffices that the record

reflects that the court expressly adverted to the factual

controversy in the PSR and complied with either of the alternative

mandates of the rule. Although here the district court neither8

cited the rule nor expr essed its determination in the precise

language of the rule, we decline to engage in a game of "Simon sez"

with our overburdened, able and diligent district courts. To

vacate and remand this case for resentencing would be to engage in

a hollow act and to waste judicial resources which are sorely

needed to deal with the ever increasing burden of matters of

substance. Given the facts and circumstances of this case we

decline to vacate Piazza's sentence and remand for resentencing in

more strict but no more effectual compliance with Rule 32(c)(3)(D).

C. Ineffective Assistance of Counsel

Piazza also claims that her counsel was ineffective because he

failed to insist that the district court make the Rule 32 findings

discussed above. This complaint directed at the effectiveness of

counsel's performance was not presented to the district court and

thus cannot be determined on direct appeal. U nited States v.

Freeze , 707 F.2d 132, 139 (5th Cir. 1983).

III

For the reasons set forth above, the defendant's conviction

and sentence are

AFFIRMED.