The HONORABLE WILLIAM W. SCHWARZER, United States District

*

Judge for the Northern District of California, sitting by

designation.

___________

No. 95-2675

___________

United States of America, *

*

Plaintiff - Appellee, * 

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Melford Burke, Jr., *

*

Defendant - Appellant. *

___________

 Submitted: December 12, 1995

 Filed: April 8, 1996

___________

Before BOWMAN and LOKEN, Circuit Judges, and SCHWARZER, District Judge. *

___________

LOKEN, Circuit Judge.

Once again, we deal with a sentencing appeal in which an Assistant

U.S. Attorney failed to comply with our cases holding that, when fact

statements in a presentence investigative report (PSR) are challenged by

the defendant, the PSR itself is not evidence and the government must prove

those facts at the sentencing hearing. See Fed. R. Crim. P. 32(c)(1).

Once again, we remand for resentencing, as we did in United States v.

Beatty, 9 F.3d 686 (8th Cir. 1993), and numerous other cases. 
 The relevant statutes were amended following Burke's August

1

1993 offense. All statutory citations are to the 1993 statutes.

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Melford Burke pleaded guilty to abusive sexual contact with a minor

female in violation of 18 U.S.C. § 2244(a)(1) (1993). His plea agreement 1

noted that this offense carries a maximum ten-year prison sentence, recited

that the actual sentence would be determined by the district court, and

then stated that the parties "concur . . . with respect to the following

sentencing factors": 

 ! Burke's abusive sexual contact offense should have a base

offense level of twelve under USSG § 2A3.4(a)(2). He warrants

a four-level increase because the victim was under twelve years

old, and a two-level increase because she was in Burke's care

or custody. See §§ 2A3.4(b)(1) and (3). 

 ! Burke should receive a two-level reduction for acceptance of

responsibility, see § 3E1.1(a), resulting in a base offense

level of sixteen. 

 ! His criminal history category should be IV, producing a

guidelines sentencing range of 33 to 41 months in prison.

The government further agreed to dismiss two more serious charges stemming

from the same offense conduct, aggravated sexual abuse of the child in

violation of 18 U.S.C. § 2241(c), and sexual abuse of the victim in

violation of § 2242(2)(A). Under the 1993 statutes, the key difference

between "sexual abuse" and the less serious "sexual contact" was that

sexual abuse required proof of penetration. See 18 U.S.C. §§ 2245(2) and

(3). The Guidelines cross reference the two crimes -- § 2A3.4(c)(1)

provides that, if the abusive sexual contact involved criminal sexual

abuse, defendant's sentence should be determined under § 2A3.1, which has

a much higher base offense level of twenty-seven.

The probation officer who prepared Burke's PSR disagreed with the

sentencing analysis in his plea agreement. First, the PSR recommended that

Burke's base offense level be determined under 
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§ 2A3.1 because he sexually abused the victim. In describing Burke's

offense conduct, the PSR stated: 

On June 7, 1994 . . . the victim related [to police

investigators] she had been touched sexually by the defendant

on several occasions and, on one occasion, the defendant had

intercourse with her which was witnessed by the victim's nineyear-old sister.

* * * * *

On June 28, 1994 . . . the victim related [to a clinical

psychologist] that the defendant penetrated her vagina with his

fingers and penis.

* * * * *

On July 18, 1994, both the victim and her sister were again

evaluated and both provided statements that were "highly

consistent" with their June 28, 1994, statements.

With applicable adjustments, this change resulted in a recommended base

offense level of thirty rather than sixteen. Second, the PSR recommended

that Burke be placed in criminal history category V. It listed fifteen

prior convictions, resulting in twelve CHC points, plus about forty tribal

court convictions that are not counted but may be considered in determining

the adequacy of Burke's criminal history category under § 4A1.3(a). Based

upon these changes, the PSR recommended a guidelines range of 151 to 188

months in prison, capped by the statutory maximum of 120 months.

Complying with the procedures prescribed in Fed. R. Crim. P.

32(b)(6)(B) and (C), Burke filed written objections to the PSR, and the

probation officer filed a written response. Burke objected "to the facts"

that state he committed sexual abuse; the probation officer replied that

the investigative materials upon which he relied were "more probable, than

not." Prior to sentencing, Burke also filed a "Position" pleading, as

required by D. Minn. Local R. 83.10(e), stating that he "disputes any

factual statement in the 
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presentence investigation which supports a conclusion that sexual abuse as

opposed to sexual contact occurred." 

At sentencing, the government announced its support of the probation

officer's recommendations. However, the prosecutor offered no evidence in

support of the disputed fact statements in the PSR, and failed to correct

the district court when it mistakenly stated that no objection had been

made to the "factual aspect" of the presentence investigation. Based upon

this erroneous view of Burke's objections, the district court adopted the

PSR finding of sexual abuse, calculated Burke's base offense level under

§ 2A3.1(a), determined a sentencing range of 140 to 175 months, and

sentenced him to the statutory maximum of 120 months in prison plus three

years supervised release. 

On appeal, Burke argues that he objected to the PSR's factual

assertions that he sexually abused the victim, and the government offered

no evidence at sentencing in support of the challenged assertions.

Therefore, the district court's critical finding of sexual abuse must be

set aside because:

[O]nce a defendant objects to the presentence report, the court

must either make a finding as to whether the disputed fact

exists or state that it will not take the disputed fact into

account. If the sentencing court chooses to make a finding

with respect to the disputed facts, it must do so on the basis

of evidence, and not the presentence report. 

United States v. Greene, 41 F.3d 383, 386 (8th Cir. 1994) (emphasis added,

citations omitted). 

In response, the government argues that Burke "made extensive

admissions" under oath at his change of plea hearing. But he admitted

conduct constituting abusive sexual contact, not criminal sexual abuse.

In other words, his admissions were consistent with the plea agreement's

approach to sentencing but do not support the 
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PSR's more punitive analysis. The government also argues that Burke failed

to preserve this issue by requesting an evidentiary sentencing hearing

under D. Minn. Local R. 83.10(f). However, when the error at sentencing

results from the government's failure to prove PSR fact statements to which

the defendant timely objected, that error is not excused because defendant

failed to request a hearing. See United States v. Hammer, 3 F.3d 266, 271-

72 (8th Cir. 1993), cert. denied, 114 S. Ct. 1121 (1994); United States v.

Wise, 976 F.2d 393, 404 (8th Cir. 1992) (en banc), cert. denied, 507 U.S.

989 (1993). It is the government that needed a hearing.

We note that the PSR's recommendation regarding sexual abuse was

based upon what the child victim had allegedly told police investigators

and mental health professionals. It is likely that these professionals

made written reports summarizing their interviews with the victim. It is

also likely that some combination of these reports and live testimony by

the professionals would be admissible at sentencing and, if found reliable

and credible, would be sufficient to establish the fact of sexual abuse for

sentencing purposes. See United States v. Knife, 9 F.3d 705, 706-07 (8th

Cir. 1993). 

We also note that, just prior to imposition of sentence, Burke's

sister, the victim's mother, made a statement vilifying Burke for raping

the victim in the presence of her younger sister, and for threatening to

harm the young girls if they disclosed what he had done. We further note

that the PSR refers to medical evidence supporting a claim that the victim

had been sexually abused. Given the probable existence of reliable victim

hearsay establishing sexual abuse, with supporting medical evidence, the

government will probably be able to prove at a sentencing hearing that

Burke's base offense level should be determined under § 2A3.1(a).

Moreover, because Burke's statutory maximum sentence is twenty months less

than the bottom of his guidelines range as initially determined by the

district court, the odds are that 
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resentencing will not provide relief from his 120-month sentence. But the

government erred at Burke's sentencing, and he has the right to insist that

he be sentenced on an adequate record.

The judgment of the district court is reversed and the case is

remanded for resentencing. Resentencing will not violate Burke's rights

under the Double Jeopardy Clause of the Fifth Amendment. See Woodall v.

United States, 72 F.3d 77, 79 (8th Cir. 1995).

A true copy.

Attest:

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