FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 28, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-15416

Non-Argument Calendar

________________________

D. C. Docket No. 07-00005-CR-JTC-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HAROLD A. SPACE,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(April 28, 2009)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:

Harold Space appeals the district court’s refusal to redact a factual statement
from his pre-sentence investigation report (“PSI”). On appeal, Space argues that

the district court did not properly address his argument that the factual statement in

paragraph 40 of his PSI was unsubstantiated and unduly prejudicial, in violation of

Federal Rule of Criminal Procedure 32(i)(3) as well as his constitutional due

process rights. Space also asserts that the district court’s failure to address his

1

argument is extremely prejudicial because it will affect decisions that the Bureau of

Prisons (“BOP”) makes about him and could even result in his civil confinement to

an indefinite term as a sexually dangerous criminal.

“We review de novo legal questions concerning the Federal Rules of

Criminal Procedure.” United States v. Spears, 443 F.3d 1358, 1361 (11th Cir.

2006) (per curiam). Federal Rule of Criminal Procedure 32(i)(3) requires a district

court at sentencing to make a determination as to a disputed fact in a PSI,

providing that it “must--for any disputed portion of the presentence report or other

controverted matter--rule on the dispute or determine that a ruling is unnecessary

either because the matter will not affect sentencing, or because the court will not

consider the matter in sentencing. . . .” Fed. R. Crim. P. 32(i)(3)(B); see also

United States v. Lopez, 907 F.2d 1096, 1101 (11th Cir. 1990) (interpreting the

predecessor to Rule 32(i)(3) and providing that “when a defendant challenges a

 Paragraph 40 of the PSI recounted a brief encounter between Space and 13-year-old 1

male that occurred in 2001 on a street in Binghampton, New York. There were no charges filed.

2
factual assertion in a PSI, the court must either make a finding as to the allegation

or determine that no such finding is necessary because the matter controverted will

not be taken into account in sentencing”). For any finding that the district court

makes under Rule 32(i)(3)(B), the sentencing court “must append a copy of the

court’s determinations under this rule to any copy of the presentence report made

available to the Bureau of Prisons.” Fed. R. Crim. P. 32(i)(3)(C); see also Lopez,

907 F.2d at 1101 (“In either case, a ‘written record of such findings and

determinations shall be appended to and accompany any copy of the presentence

investigation report thereafter made available to the Bureau of Prisons or the Parole

Commission.’”) (citation omitted). The district court must strictly adhere to the

dictates of Rule 32(i)(3) “because the rule helps ensure that future decisions about

a defendant’s penal treatment are based on a fair and accurate PSI.” Lopez, 907

F.2d at 1101.

Here, the district court failed to comply with Rule 32(i)(3). First, while it

denied Space’s request to remove paragraph 40 from the PSI, the district court

failed “to make a finding as to the accuracy of the challenged factual proposition or

to determine that no reliance will be placed on that proposition at the time of

sentencing.” FED. R. CRIM. P. advisory committee’s note (1983 Amendments).

Second, the district court failed to append a copy of its determination to the PSI, in

3
violation of its obligation under Rule 32(i)(3)(C).

We note, however, that because the disputed factual statement had no

harmful effect on Space’s sentence, there is no need to vacate his sentence.

2

Accordingly, we remand this case back to the district court to comply with the

pertinent procedures.

3

REMANDED.

 At sentencing before the district court, Space did not re-raise his objection to paragraph 2

40 until after the district court imposed sentence. Moreover, on appeal, Space does not even

request resentencing. See Br. of Appellant at 15 (requesting “this Court to remand this case to

the district court with direction to redact the content of paragraph 40 of the pre-sentence report

or address the [sic] Mr. Space’s objections to that paragraph in accordance with the dictates of

Rule 32 and due process”).

 In a similar case where the district court “failed to make a finding as to [the 3

defendant’s] factual challenge to the PSI or to make an express determination that no finding

was necessary,” we gave the following instructions on remand:

The district court must append to [the defendant’s] PSI either its

factual finding as to the disputed factual matter or its express

determination that no finding is necessary because it did not rely on

the matter in sentencing. If the district court makes an express

determination that it did not rely on the disputed factual matter in

sentencing, then due process is not implicated and resentencing is

unnecessary. Of course, resentencing will be necessary if the district

court determines that any of the information upon which it relied in

sentencing was materially inaccurate.

See Shukwit v. United States, 973 F.2d 903, 905 (11th Cir. 1992) (per curiam) (footnote omitted).

4