IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-50833

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADOR ESQUEDA-MORENO,

Defendant-Appellant.

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Appeal from the United States District Court

for the

Western District of Texas

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(June 14, 1995)

Before JOHNSON, WIENER, and STEWART Circuit Judges.

JOHNSON, Circuit Judge:

In 1989, Defendant-Appellant Salvador Esqueda-Moreno

("Esqueda") pleaded guilty of importing marijuana into the United

States in violation of 21 U.S.C. §§ 952(a) and 960(a)(1). Esqueda

failed to appear for his subsequent sentencing hearing and was a

fugitive from the law until he was apprehended on unrelated charges

in 1994. Esqueda finally underwent his sentencing hearing for the

1989 marijuana charges in 1994 when he was assigned an offense

level of twenty-eight under the United States Sentencing Guidelines

("the Guide lines") and sentenced to ninety months in the federal

penitentiary. Esqueda now appeals his two-point upward adjustment

for obstruction of justice on the grounds that the district court2

failed to make a specific finding as to whether Esqueda willfully

failed to appear for sentencing immediately followi ng the 1989

guilty plea. Because we believe that the willfulness of Esqueda's

failure to appear at the sentencing hearing did not constitute a

controverted issue under the terms of F ED

. R. C RIM

. P. 32 and thus

did not require a specific finding, we affirm.

I. Facts and Procedural History

On December 19, 1989, Esqueda pleaded guilty to importing over

100 kilograms of marijuana into the United States from Mexico.

Esqueda posted a $25,000 bail bond and was released until his

sentencing hearing which was scheduled for February 13, 1990. When

Esqueda failed to report for his February sentencing hearing, the

district court revoked the bond and issued a warrant for Esqueda's

arrest. On April 6, 1994, Esqueda was arrested in California on

other drug-related charges. On April 8, 1994, the United States

Marshal Service lodged a detainer and Esqueda was taken into

federal custody on October 28, 1994. Sentencing on the 1989

federal importing of marijuana charges was rescheduled for December

14, 1994.

The probation officer updated Esqueda's presentence report

("PSR") to reflect his failure to appear for the February 13, 1990,

sentencing date. In recalculating Esqueda's offense level, the

probation officer included a two-level adjustment for willful

obstruction of justice. Esqueda lodged only one written objection

to the PS R. He objected to the PSR's failure to include a twopoint downward adjustment for acceptance of responsibility. During1 Esqueda also proffered this same excuse for his failure to

app ear at the 1990 sentencing hearing during his presentence

interview with the probation officer who prepared the PSR. After

specifically noting that wil fulness is a requirement for an

obstruction enhancement based upon failure to appear in court, the

probation officer found that Esqueda had obstructed jus tice by

failing to appear for sentencing, changing his residence, and

remaining a fugitive until he was taken into custody. The

probation officer also found that Esqueda had not accepted

responsibility for his conduct and did not deserve a corresponding

downward adjustment. The probation officer based her finding that

Esqueda had not accepted responsibility for his conduct on the fact

that he engaged in similar conduct during his fugitive status as evidenced by his drug arrest in California.

3 the actual sentencing hearing as well, Esqueda's counsel referred

only to the lack of a downward acceptance of responsibility

adjustment in contesting the PSR. The district court overruled the

acceptance of responsibility objection, stating that Esqueda's

situation was not one of those rare instances warranting an offense

level enhanc ement for obstruction of justice a nd a downward

adjustment for acceptance of responsibility.

After the district court overruled Esqueda's objection to the

presentence report, the district court allowed Esqueda to make any

unsworn statements he desired to make to the district court before

the court imposed sentence. Esqueda stated that the reason he did

not appear for sentencing in 1990 was that an acquaintance had told

him that if he paid the $25,000 bond, he did not have to appear for

sentencing. Esqueda claimed that he therefore sold his home in

Texas, paid the proceeds to his bail bond company, and then moved

to California. 1 In response to Esqueda's statements the district

court stated, "I will agree with you that you succeeded in carrying

on, going your merry way for about four years before it caught up4

with you." (II Record at 18.)

The district court then adopted the factual findings and the

Guidelines application in the PSR. The court found Esqueda's total

offense level to be twenty-eight with a criminal history of II,

which left Esqueda with a sentencing range of 87-108 months. The

district court ordered Esqueda to serve ninety months in prison

followed by four years of supervised release and to pay a fifty

dollar special assessment.

Esqueda now appeals the district court's sentence. He asserts

that the district court failed to comply with F ED

. R. C RIM

. P. 32 and

that, as a result, the district court may have incorrectly applied

the Guidelines. Esqueda contends that the district court violated

Rule 32 by failing to make a specific factual determination as to

whether Esque da willfully failed to appear for his scheduled

sentencing in 1990. Esqueda claims that such a specific finding

was necessary because of the comments he made at his sentencing

regarding his misunderstanding of the effect of paying the $25,000

bond. Esqueda argues that his comments placed the willfulness

i ssue in controversy so as to require the district court to make

specific findings under Rule 32.

II. Discussion

A district court's legal application of the Guidelines is

reviewed de novo, while any fact findings made in applying the

Guidelines are reviewed for clear error. U nited States v. Palmer,

31 F.3d 259, 261 (5th Cir. 1994). While a Rule 32 violation may be

addressed for the first time on appeal, Esqueda cannot meet his2 Manotas-Mejia addresses the former Rule 32(c)(3 )(D), which

became Rule 32(c)(1) after the 1994 ame ndment. The notes of the

advisory committee make clear that no major change was intended in

regard to practice surrounding Rule 32; therefore, the spectrum of

appellate rev iew remains unchanged. S ee Rule 32(c) advisory

committee's notes.

5 burden of establishing that the district failed to comply with the

rule and, thus, there is no reversible error. S ee United States v.

Manotas-Mejia

, 824 F.2d 360, 368 (5th Cir.), cert. denied

, 484 U.S.

957 (1987) (allowing a Rule 32 violat ion to be addressed for the

first time on appeal). 2

F ED

. R. C RIM

. P. 32(c)(1) provides that:

At the sentencing hearing,the court must afford

counsel for the defendant and for the Government an opportunity to comment on the probation officer's

det e rminations and on other matters relating to the

appropriate sentence, and must rule on any unr esolved

objections to the presentence report. The court may, in

its discretion, permit the parties to introduce testimony

or other evidence on the objections. For each matter

controverted, the court must make either a finding on the

allegation or a determination that no finding is

necessary because the contro verted matter will not be

taken into account in, or will not affect, sentencing.

As may be seen from the plain language, Rule 32(c)(1) requires only

that sentencing court rule on any "unresolved o bjections to the

presentence report." F E D

. R. C RIM

. P. 32 (emphasis added). Numerous

decisions of this Court are grounded on the assumption that a

matter becomes "controverted" so as to implicate the requirements

of t he third sentence of Rule 32(b)(1) only after there is an

"unresolved objection" pursuant to the first sentence. S ee, i.e.,

United States v. Ruiz

, 43 F.3d 985, 991 (5th Cir. 1995)

(emphasizing the necessity for the filing o f written or oral

objections to the PSR in order to contest the information found in3 Significantly, Ruiz also places a great deal of emphasis on

the fact that the Local Rules of the district court generally

required written objections to place PSR findings in controversy.

See id. at n.13. Like the Southern District of Texas involved in

Ruiz

, the Western District of Texas involved in the case at bar

required the delivery of written objections in order to put the PSR

into controversy unless good cause was shown in order to allow such

objections orally at the sentencing hearing.

6 the PSR so as to require findings under Rule 32(c)(3)(D)) 3 ; United

States v. Wiley

, 979 F.2d 365, 369 (5th Cir. 1992) (commenting that

Rule 32 requires the district court to make findings with regard to

allegations of factual inaccuracies i n the PSR when "objections"

are unresolved); United States v. Rodriguez

, 897 F.2d 1324, 1327-28

(5th Cir.), cert. denied

, 498 U.S. 857 (1990) (requiring objections

to the PSR to be made "with specificity and clarity" so that the

district court can delineate what is and is not a specifically

disputed issue of fact). The district court cannot be expected to

conduct an independent analysis of the PSR, looking for every

potential dispute or controversy within the facts and conclusions

the PSR has set forth. This is precisely why Rule 32(b)(1)

provides the defendant with the mechanism of objecting to the PSR

in order to t urn the district court's attention to any errors of

controversy. Esqueda has failed to show that the district court

was required to address the issue of the willfulness of his failure

to appear at the 1990 sentencing because Esqueda never raised a

general or specific objection to the obstruction of justice

e nhancement. Prior to and during sentencing, Esqueda raised the

same solitary objection——that the PSR should have included a

downward adjustment for acceptance of responsibility. He did not7

argue——either in his presentence objections to the PSR or during

the sentencing hearing itself ——that he should receive a downward

adjustment bec ause his failure to appear at the 1990 sentencing

hearing was not willful. Moreover, Esqueda never raised an

objection at any time concerning the PSR's inclusion of the twolevel upward adjustment in his offense level for obstruction of

justice——the very aspect of Esqueda's sentence that he now contends

raises the issues of willfulness and the district court's failure

to address it. Because Rule 32 contemplates an objection to place

a fact or conclusion in the PSR into controversy, the district

court was not required to make a specifi c finding as to the

willfulness of Esqueda's failure to appear at his 1990 sentencing

hearing.

III. Conclusion

F ED

. R. C RIM

. P. 32(c)(1) contemplates an objection in order to

place the PSR into controversy so as to require the district court

to make specific findings as to the controversial issue. Because

Esqueda failed to object to the obstruction of justice enhancement,

the district court was not required to make any specific finding as

to whether Es queda willfully failed to appear at his sentencing

hearing in 1990. Therefore, the district court's sentence is

affirmed.

AFFIRMED.