### The HONORABLE WILLIAM W. SCHWARZER, United States Distric t * 

### Ju dge for the Northern District of California, sitting b y 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 ag ain, we deal with a sentencing appeal in which an Assistan t U.S. Attor ney failed to comply with our cases holding that, when fac t statements in a presentence investigative report (PSR) are challenged by the defendant, the PSR itself is not evidence and the government must prov e those facts at the sentencing hearing. See Fed. R. Crim. P. 32(c)(1)
. Onc e 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 Augus t 1 

### 1993 offense. All statutory citations are to the 1993 statutes. -2- Melford B urke pleaded guilty to abusive sexual contact with a minor female in violation of 18 U.S.C. § 22 44(a)(1) (1993). His plea agreement 1 noted that this offense carries a maximum ten-year prison sentence, recite d that the actual sentence would be determined by the district court, an d then stated that the parties "concur . . . with respect to the following sentencing factors":
! Burke's abusive sexual contact offense should have a bas e 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 o f responsibility, see § 3E1.1(a), resulting in a base offens e level of sixteen. ! His c riminal history category should be IV, producing a guidelines sentencing range of 33 to 41 months in prison.
The government further agreed to dismiss two mor e serious charges stemming from the same offense conduct, aggravated sexual abuse of the child i n violation of 18 U.S.C. § 2241(c), and sexual abuse of the victim i n violation of § 2242(2)(A). Under the 1993 statutes, the key differenc e between "sexual abuse" and the less serious "sexual contact" was tha t sexual abuse requiredproof of penetration. See 18 U.S.C. §§ 2245(2) and (3). The Guidelines cross reference the two crimes -- § 2A3.4(c)(1 ) provid es that, if the abusive sexual contact involved criminal sexua l abuse, defendant's se ntence 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 th e sentencing analysis in his plea agreement. First, the PSR recommended tha t Burke's base offense level be determined under

### -3-

§ 2A3.1 be cause he sexually abused the victim. In describing Burke' s offense conduct, the PSR stated:

On June 7 , 1994 . . . the victim related [to polic e investigators] she had been touched sexually by the defendant on several occasions and, on one occasion, the defendant ha d intercourse with her whi ch was witnessed by the victim's nineyear-old sister. * * * * * On Jun e 28, 1994 . . . the victim related [to a clinica l psychologist] that the defendant penetrated her vag ina with his fingers and penis. * * * * * On July 18, 1994, both the victim and her sister were agai n evalu ated and both provided statements that were "highl y consistent" with their June 28, 1994, statements.
With a pplicable adjustments, this change resulted in a recommended bas e offense level of thir ty rather than sixteen. Second, the PSR recommended that Burk e be placed in criminal history category V. It listed fiftee n prior convictions, resulting in twelve CHC point s, plus about forty tribal court convictions that are not counted but may be considered in determinin g the adequacy of Burke's criminal history categor y 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 th e probation officer filed a written response. Bur ke 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." P rior to sentencing, Burke also filed a "Position" pleading, a s required b y D. Minn. Local R. 83.10(e), stating that he "disputes an y factual statement in the

### -4-

presentence investigation which supports a concl usion that sexual abuse as opposed to sexual contact occurred."
At sentencing, the government announ ced its support of the probation officer's recommendations. However, the prosecu tor offered no evidence in support of the disput ed fact statements in the PSR, and failed to correct the district court when it mistakenly stated that no objection had bee n made to the "factual aspect" of the presentence investigation. Based upon this erroneous view o f 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, an d 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 factua l assertions that he se xually abused the victim, and the government offered
no evi dence 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 repor t, the court must either make a finding as to whether the disputed fac t exists o r state that it will not take the disputed fact int o account . If the sentencing court chooses to make a findin g with respect to the disp uted 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 C ir. 1994) (emphasis added, citations omitted).

In response, the government argues that Burke "made extensiv e admissions" under oath at his change of plea hearing. But he admitte d 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

### -5-

PSR's more punitive analysis. The government also argues that Burke faile d to pre serve this issue by requesting an evidentiary sentencing hearin g 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 whic h 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. 112 1 (1994); United States v. Wise , 976 F.2d 393, 4 04 (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 wa s based upon what the child victim had allegedly told police investigators and mental health professionals. It is likely that these professional s 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 sentenc ing and, if found reliable and credible, would be sufficient to establish the fact of sexual abuse fo r 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 supporti ng a claim that the victim had been sexually abused. Given the probable ex istence of reliable victim hearsay establishing sexual abuse, with supporting medical evidence, the gover nment will probably be able to prove at a sentencing hearing tha t Burke' s base offense level should be determined under § 2A3.1(a)
. Moreover, because Burke's statutory maximum sent ence is twenty months less than the bottom of his guidelines range as initially determined by th e district court, the odds are that

### -6-

resentencing will not provide relief from his 12 0-month sentence. But the government erred at Burke's sentencing, and he has the right to insist tha t he be sentenced on an adequate record.

The j udgment of the district court is reversed and the case i s 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.