* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 1 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARCOS NATERA, Defendant - Appellant. No. 02-2238 (D.C. No. CR-00-1424 JC) (D. New Mexico)

ORDER AND JUDGMENT *

Before KELLY , BRISCOE , and LUCERO , Circuit Judges. **
Defendant-Appellant Marcos Natera appeals from the sentence imposed based upon his conviction by a jury of (1) conspira cy to possess with intent to distribute 50 grams or more of methamphetamine, 100 kilograms or more of marijuana and less than 500 grams of cocaine, 21 U. S.C. § 846, and (2) knowingly or intentionally making a building or enc losure available for the1 The rule currently provides:

Court Determinations. At sentencing, the court:

. . . (B) must–for any disputed portion of the presentenc e report or other controverted matter–rule on the dispute or determin e that a ruling is unnecessary either because the matter will not affe ct sentencing, or because the court will not consider the matter in s entencing . . . . Fed. R. Crim. P. 32(i)(3)(B). See United States v. Treadway , 328 F.3d 878, 885 - 2 - unlawful manufacture of a controlled substance with in 1000 feet of a school, 21 U.S.C. § 860(a). I R. Doc. 319 (verdict and specia l verdict for Defendant Marcos Natera). He was sentenced to 360 months of impriso nment and ten years supervised release on each count, to run concurrent ly. I R. Docs. 364, 373. On appeal, he contends that the district court erred b y failing to comply with Fed. R. Crim. P. 32(c)(1). Rule 32(c)(1) and U.S.S.G. § 6A 1.3(b) require a district court at the sentencing hearing to rule on unresolved obj ections to the presentence report (“PSR”), and “[f]or each matter controverted. . . make either a finding on the allegation or a determination that no finding i s necessary because the controverted matter will not be taken into account in, or will not affect, sentencing.” Fed. R. Crim. P. 32(c)(1). Our juris diction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Our review of comp liance with Fed. R. Crim. P. 32(c)(1) and U.S.S.G. § 6A1.3(b) is de novo. Unite d States v. Houston , 217 F.3d 1204, 1206 (9th Cir. 2000). We remand for complian ce with the rule. 1 Mr.n.3 (6th Cir. 2003) (discussing change). - 3 -

Natera’s ineffective assistance of counsel claim is premature and should be dismissed. See United States v. Galloway , 56 F.3d 1239, 1242 (10th Cir. 1995); see also Massaro v. United States , 123 S. Ct. 1690, 1695 (2003) (ineffective assistance of counsel claims not raised on direct appeal are not waived in subsequent § 2255 proceeding). Mr. Natera filed eleven objections to the PSR. I R. Doc. 354. The government responded, and the probation office subm itted an addendum to the PSR addressing some of the objections. I R. Doc. 3 57, IV R. (PSR), Addendum. At sentencing, the following colloquy occurred conc erning Mr. Natera’s objections: THE COURT: All right. Is there anything in the pr esentence report you specifically wish to call to my attention. COUNSEL: We have filed an objection to the present ence report. Nothing in addition, Your Honor. THE COURT: I’m going to overrule your objections. I find what Probation says is correct. VIII R. at 2. The court then adopted the presenten ce report findings and guidelines applications. Id. at 3. As noted, Mr. Natera filed several objections to th e PSR, including that (1) the use of the expression “net grams of methamphetamine” was ambiguous and- 4 -

over-inclusive, (2) Mr. Henry, a co-defendant, test ified that he may have paid Mr. Natera money for rent, rather than drugs, (3) Mr. H enry was incapable of manufacturing one pound of methamphetamine because he was only present for two months, (4) it was inappropriate to use the oth erwise applicable guideline instructions to determine the offense level in the PSR because the jury returned a special verdict as to quantity of drugs, (5) certai n amounts of narcotics imputed to the defendant in the PSR were never established at trial, (6) it was inappropriate to attribute more than 50 kilograms of marijuana to Mr. Natera because a special verdict found that he was involved in the conspirac y only to the extent of less than 50 kilograms, (7) the amount of cocaine conten ded was “completely out of proportion” to the amount designated at trial, and there is no “readily ascertainable source” for the amount specified in t he PSR, (8) there was no evidence that Mr. Natera was a “manager” or “superv isor,” (9) the criminal history category calculation utilized is “out of al l proportion,” (10) there was no testimony that Mr. Natera was involved in the consp iracy during his probation, and (11) any recommendation of a fine contained in the PSR is inappropriate. I R. Doc. 354. Objections numbered 2, 3, 5, and 8 ar e adequate to raise a factual dispute and require a finding by the district courtor a statement that the matter was not considered in imposing sentence. However, we agree with the government as to the remainder of the objections–th ey constitute challenges to the- 5 -

application of the guidelines, challenges to the cu rrent convictions, or semantic challenges that do not invoke the fact-finding proc edure. See United States v.
Brown , 314 F.3d 1216, 1226-27 (10th Cir. 2003); United S tates v. Windle , 74 F.3d 997, 1002 (10th Cir. 1996). The government also argues that a remand is only re quired where a defendant raises an objection at the hearing and th en requests an evidentiary hearing. But Mr. Natera did raise his objections t o the PSR at the hearing–when the court inquired, Mr. Natera relied upon those su bmitted in writing. See United
States v. Romero , 122 F.3d 1334, 1344 (10th Cir. 1997) (relying upo n written submission of objections). It then became the dutyof the district court to comply with the rule. See Brown , 314 F.3d at 1225-26; Romero , 122 F.3d at 1344; United States v. Henning , 77 F.3d 346, 349 (10th Cir. 1996). We remand forthe district court to make the necessary findings and attach them to the PSR or state that it did not take the factually controverted matters into consideration. REMANDED. The ineffective assistance claim is DISM ISSED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge