UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 94-5919

FRANK ALEXIS ROBINSON,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

John A. MacKenzie, Senior District Judge.

(CR-94-34-NN)

Argued: June 7, 1995

Decided: May 23, 1996

Before WIDENER and LUTTIG, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion. Judge

Widener wrote a dissenting opinion.

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COUNSEL

ARGUED: James Ashford Metcalfe, Senior Litigation Counsel/Assistant United States Attorney, Norfolk, Virginia, for Appellant.

Robert A. Dybing, SHUFORD, RUBIN & GIBNEY, Richmond, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Norfolk, Virginia, for Appellant. James S. Ellenson, Newport

News, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A jury convicted Frank Alexis Robinson of one count of conspiracy to file false claims for federal income tax refunds, 18 U.S.C.

§ 286, and three counts of filing false claims, 18 U.S.C. § 287. At the

sentencing hearing, the district court denied the government's recommendations for an increase of the offense level for more than minimal

planning and an upward adjustment for obstruction of justice. We

vacate the court's judgment with respect to the sentence imposed and

remand for further proceedings.

I

Robinson's Presentence Investigation Report (PSI) recommended

that his base offense level be increased for more than minimal planning pursuant to U.S.S.G. § 2F1.1(b)(2)(A). The PSI also recommended that his sentence be adjusted upward for obstruction of justice

pursuant to U.S.S.G. § 3C1.1.

Prior to sentencing, Robinson objected to the recommended

enhancement for obstruction of justice. He did not object to the recommended increase of his offense level for more than minimal planning.

The district court denied the enhancement for obstruction of justice

without making any relevant findings. The court also denied the

increase for more than minimal planning. The government appeals,

alleging that the court applied the Sentencing Guidelines incorrectly.

II

At the time of sentencing, Fed. R. Crim. P. 32(c)(3)(D) (now Rule

32(c)(1)) provided that if a defendant alleges

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any factual inaccuracy in the presentence investigation

report . . . , the court shall, as to each matter controverted,

make (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.

Under both the old rule and the revised rule, the district court has the

discretion either to make a finding resolving the factual dispute or to

determine that the dispute will have no effect on sentencing. But this

discretion is limited.

The governing statute, the Sentencing Guidelines, and circuit precedent require a court to impose a sentence within a specified range

unless valid reasons for departure exist. 18 U.S.C.§ 3553(b); see

U.S.S.G. § 1B1.1. To calculate the defendant's offense level and the

appropriate sentencing range under 18 U.S.C. § 3553(a), a court must

determine "the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines." 18 U.S.C.

§ 3553(a)(4)(A). The final offense level is determined in part by specific offense characteristics, such as more than minimal planning,

which are outlined in the Guidelines. The final offense level is also

determined in part by the applicable adjustments. See U.S.S.G.

§ 1B1.1(c). An adjustment is mandatory if the facts before the court

satisfy the Guideline criteria. United States v. Ashers, 968 F.2d 411,

414 (4th Cir. 1992). Proper application of mandatory adjustments and

offense characteristics are essential steps in calculating an appropriate

sentencing range.

If the facts in the PSI pertaining to an adjustment, an increase, or

other sentencing recommendations are controverted, Rule 32 requires

the court to make findings of fact resolving the dispute. A court has

the discretion not to resolve a contested fact only if that fact is irrelevant to sentencing or capable of being disregarded by the court. An

example of this second category is a situation where a court would

properly impose the same sentence regardless of the resolution of the

dispute. But a court must resolve all factual disputes that are critical

to the sentencing determination, including facts that would support a

mandatory adjustment. Otherwise, a court would be able to avoid the

mandatory nature of the Guidelines by employing discretion to dis-

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count relevant facts. This would eviscerate the Guidelines' core purpose of promoting uniformity in sentencing.

The district court previously tried a number of Robinson's coconspirators, and it expressed the view that Robinson's punishment

should be the same as theirs. It is for this reason that it declined to

impose the additional punishment on Robinson that the government

sought.

Prior to the legislation creating the United States Sentencing

Guidelines and the promulgation of the Guidelines themselves, the

district court's decision to treat all the defendants who were involved

in this conspiracy the same would have been acceptable. The practice,

however, of a district court's well-nigh unlimited discretion in sentencing, subject only to the statutory maximum, led to great discrepancies in the sentences imposed by district courts throughout the

country. While some judges might agree that the sentence imposed by

the district court in this case was fair and adequate, other judges

might impose a much more severe punishment for the same conduct.

In too many instances the punishment imposed on a defendant

depended on the happenstance of which judge decided his case. It was

to remove such discrepancies that Congress directed that sentences be

imposed in accordance with the Guidelines. The district court's

attempt to equalize the punishment of all defendants who participated

in this particular scheme of tax fraud must give way to the broader

concept of equality mandated by Congress and the Guidelines that

takes into consideration not only the seriousness of the offense but the

proven, relevant characteristics of each defendant.

Robinson did not object to the two-level increase for more than

minimal planning. If the uncontroverted facts support a two-level

increase under U.S.S.G. § 2F1.1(b)(2)(A), the court should increase

Robinson's offense level accordingly.

The district court should also have resolved the disputed facts relating to the PSI's reference to an obstruction-of-justice adjustment.

After Robinson objected to the government's recommendation, the

court was required to resolve the factual dispute by making appropriate findings of fact under Rule 32 to determine whether Robinson had

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engaged in the obstruction-of-justice conduct outlined in U.S.S.G.

§ 3C1.1.

We remand for findings on the controverted obstruction-of-justice

facts. If the facts support the obstruction-of-justice adjustment, the

district court must enhance the sentence by two levels. See U.S.S.G.

§ 3C1.1. If the uncontroverted facts justify the increase for more than

minimal planning, the district court must also apply this two-level

increase on remand. See U.S.S.G. § 2F1.1(b)(2)(A).

VACATED AND REMANDED

WIDENER, Circuit Judge, dissents.

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