1The Honorable Cynthia Holcomb Hall, United States Circuit Judge for the

Ninth Circuit, sitting by designation.

2The Honorable James M. Rosenbaum, United States District Judge for the

District of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 01-1480

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

 * District Court for the Western

 * District of Missouri

v. *

 *

Joshua D. Stapleton, *

 *

Appellant. *

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Submitted: June 12, 2001

Filed: September 12, 2001

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Before LOKEN, HALL,1 and ROSENBAUM,2 Circuit Judges.

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HALL, Circuit Judge.

Defendant Joshua Stapleton challenges his sentence for unlawful possession of

a firearm by a convicted felon under 18 U.S.C. § 922(g). In calculating Stapleton’s
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criminal history score under the sentencing guidelines, the district court relied solely

on a presentence report (“PSR”). Both before and during sentencing, Stapleton

objected that the PSR wrongly counted two municipal convictions and a 1992 juvenile

adjudication in calculating his criminal history category. He argues that the district

court is required to do more at sentencing than adopt the factual findings proposed by

a probation officer in a PSR when those factual findings are in dispute. We agree.

A specific objection to a statement in a PSR triggers a district court’s obligation

to make a finding as to the factual dispute. See Fed. R. Crim. P. 32(c); United States

v. Arrington, 215 F.3d 855, 867 (8th Cir. 2000). In making its finding, the district court

is bound to “do so on the basis of the evidence and not the presentence report” because

“the presentence report is not evidence and not a legally sufficient bas[i]s for making

findings on contested issues of fact.” United States v. Greene, 41 F.3d 383, 386 (8th

Cir. 1994). 

Stapleton objects to the PSR’s account of his previous convictions for two

reasons. First, he contends that he never pled guilty to the two municipal convictions.

Second, he maintains that he did not serve any part of his 1992 juvenile conviction

within five years of the commission of the instant offense, and, therefore, it should not

be counted towards his criminal history score. See U.S.S.G. § 4A1.2(d)(2)(A). Here,

the sentencing judge did note Stapleton’s objections and gave his counsel the

opportunity to speak to them in court. The judge, thereafter, asked the probation

officer who wrote the PSR for his response. But while the judge or Stapleton’s counsel

occasionally asked the probation officer follow up questions, no further inquiry was

made. 

We recognize that the Sentencing Guidelines do not mandate a full evidentiary

hearing when a defendant disputes a PSR’s factual representation. See U.S.S.G. §

6A1.3, commentary (explaining that “[w]ritten statements of counsel or affidavits of

witnesses may be adequate under many circumstances” for settling a factual dispute
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about a factor important to the sentencing determination). But some investigation and

verification of the disputed statements in the PSR is required. The government admits

that it presented no evidence regarding either the municipal convictions or the juvenile

adjudications other than the statements offered by the probation officer in response to

the court’s questions. 

The probation officer was not under oath at the sentencing hearing and

Stapleton’s counsel did not have an opportunity to cross-examine him. We do not find

this to be a sufficient basis for resolving the factual disputes over the PSR’s accounts

of the prior convictions. Cf. United States v. Wise, 976 F.2d 393, 404-05 (8th Cir.

1992) (holding that a trial judge’s decision to put the probation officer who wrote a

presentence report under oath during the sentencing hearing and allow the defense to

voice its objections and cross examine the probation officer was constitutionally

sufficient). When a defendant contests facts alleged in a PSR, the government must

produce evidence to convince the sentencing court that its position is correct. See

United States v. Hammer, 3 F.3d 266, 268 (8th Cir. 1993). The government claims that

it has evidence to support its version of the facts; if so, the government should be

required to present this evidence to the court instead of relying on unsubstantiated

statements in a PSR. The district court erred in not putting the government to its proper

burden in this case.

The government contends that the terms of Stapleton’s plea agreement prevent

him from contesting the manner in which he was sentenced. We read the plea

agreement differently. Although the agreement states “[t]he defendant agrees not to

appeal or otherwise challenge the constitutionality or legality of the Sentencing

Guidelines,” Stapleton objects to the trial court’s failure to conduct a hearing on

disputed evidence, not to the unconstitutionality of a particular sentencing provision.

The agreement reads: “The parties may advocate any position at the sentencing hearing

regarding any sentencing issues not addressed in this agreement.” We conclude that

Stapleton did not waive his right to challenge the sufficiency of the government’s
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evidence of his prior convictions and the sentencing court’s review of that evidence.

Accordingly, we reverse Stapleton’s sentence and remand for a factual

determination by the district court and resentencing. The existing record should be

reopened so that both sides may submit evidence regarding the disputed convictions.

A true copy.

Attest:

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