Roueche Appeal Document

Case: 09-30441 07/14/2010 Page: 1 of 31 ID: 7404699 DktEntry: 16
NO. 09-30441
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLAY ROUECHE,
Defendant-Appellant.
_________________________________________________________
APPEAL FROM THE

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
The Honorable Robert S. Lasnik

District Judge
No. 07-CR-00344-RSL
_________________________________________________________
REPLY BRIEF
_________________________________________________________
Sheryl Gordon McCloud

Law Offices of Sheryl Gordon McCloud
710 Cherry St.
Seattle, WA 98104-1925
(206) 224-8777
Attorney for Appellant,
Clay Roueche
TABLE OF CONTENTS
I. INTRODUCTION.......................................................................1
II. THE GOVERNMENT CLAIMS THAT THERE

WAS NO RULE 32 ERROR BECAUSE, AS A
FACTUAL MATTER, THE DISTRICT COURT
CONSIDERED ONLY MR. ROUECHE’S OWN
ACTS; RULE 32(i)(3)(B), HOWEVER,
REQUIRES FACTFINDING ABOUT EVEN
THE DEFENDANT’S OWN ACTS...........................................3
A. The Government Argues That There Was No

Rule 32(i)(3)(B) Error Because the District
Court Considered Only Mr. Roueche’s “Own”
Acts ........................................................................................3
B. Rule 32(i)(3)(B) Requires Factfinding About

(Or Declining Reliance on) the Defendant’s
“Own” Acts, If There Are Material Disputes
About Them ...........................................................................3
C. The District Court’s Statement That it Would

Not Consider Disputed Allegations Concerning
Mr. Roueche’s BOP Transfer Shows That
When it Declines to Consider Certain Disputed
Facts, It Knows How to Make that Clear...............................5
D. Disputes Over Whether The Defendant Used

Violence and Trafficked, Internationally, in
Uncharged Drugs, are “Material” ..........................................6
III. RULE 32(i)(3)(B) LEGAL ISSUES ARE

REVIEWED DE NOVO WHERE THE
DEFENSE STATES THAT THERE IS A
DISPUTED ISSUE OF MATERIAL FACT; NO
CITATION TO THAT RULE, OR REQUEST
FOR A RULING ON THE DISPUTES, IS
REQUIRED ................................................................................9
i
A. The Government Argues that The Rule 32 Error

Was Not Preserved for Review ..............................................9
B. The Defense Need Do No More Than Alert the

District Court to the Existence of a Disputed
Material Fact to Get De Novo Review ............................... 10
IV. THE GOVERNMENT CLAIMS THAT THERE

WAS NO RULE 32 ERROR BECAUSE THE
DISPUTES DID NOT CONCERN GUIDELINES;
BUT RULE 32(i)(3)(B) REQUIRES
FACTFINDING ABOUT EVEN NON-
GUIDELINES MATERIAL FACTS ...................................... 16
A. The Government Argues That Rule 32(i)(3)(B)

Applies Only to Guidelines Calculations and
that Implicit Compliance Suffices ...................................... 17
B. Rule 32(i)(3)(B) Is Not Limited to Guidelines

Calculations ......................................................................... 17
C. Rule 32(i)(3)(B) Does Require “Express” or

“Strict” Compliance ............................................................ 18
V. THE HEARSAY EVIDENCE UPON WHICH

THE DISTRICT COURT RELIED WAS NOT
CORROBORATED BY ANY UNDISPUTED
EVIDENCE ............................................................................. 20
VI. CONCLUSION ........................................................................ 22
STATEMENT OF RELATED CASES ............................................................ 23
CERTIFICATE OF COMPLIANCE ................................................................ 24
ii
TABLE OF AUTHORITIES
C ASES
Gall v. United States,
552 U.S. 38 (2007)......................................................................................9
United States v. Anton,
353 Fed. Appx. 343 (11th Cir. 2009) ...................................................... 19
United States v. Berry,
258 F.3d 971 (9th Cir. 2001) ............................................................. 14, 15
United States v. Booker,

543 U.S. 220 (2005)....................................................................... 2, 12, 19
United States v. Bostic,

371 F.3d 865 (6th Cir. 2004) ......................................................... 2, 18, 19
United States v. Carter,
219 F.3d 863 (9th Cir. 2000) ....................................................... 12, 13, 18
United States v. Cook,
550 F.3d 1292 (10th Cir. 2008) ............................................................... 14
United States v. Evans-Martinez,

__ F.3d __ (9th Cir. 2010), 2010 U.S. App. LEXIS 13929
(July 8, 2010) ........................................................................................... 13
United States v. Hansley,
54 F.3d 70 (11th Cir. 1995) ..................................................................... 12
United States v. Herrera-Rojas,
243 F.3d 1139 (9th Cir. 2001) ................................................................. 18
United States v. Johnson,

505 F.3d 120 (2d Cir. 2007) .......................................................................9
United States v. McGhee,

512 F.3d 1050 (8th Cir. 2008) ....................................................................9
iii
United States v. Orr,

567 F.3d 610 (10th Cir. 2009) ................................................................. 11
United States v. Ponce,

51 F.3d 820 (9th Cir. 1995) ..................................................................... 20
United States v. Ressam,

593, F.3d 1095, 1122 (9th Cir. 2010) ...................................................... 13
United States v. Rodriguez-Luna,

283 Fed. Appx. 485 (9th Cir. 2008) .................................................. 17, 19
United States v. Santiago,

466 F.3d 801 (9th Cir. 2006) ................................................................... 11
United States v. Tindall,

519 F.3d 1057 (10th Cir. 2008) ............................................................... 11
United States v. Waknine,
543 F.3d 546 (9th Cir. 2008) ............................................................. 14, 15
United States v. West,
550 F.3d 952 (10th Cir. 2008), overruled on other grounds,
United States v. McConnell, 605 F.3d 922 (10th Cir. 2010) ................... 19
United States v. White,

492 F.3d 380 (6th Cir. 2007) ................................................................... 11
FEDERAL STATUTES AND RULES

18 U.S.C. §3553(a) ....................................................................................... 18
Federal Rule of Criminal Procedure 32 ................................................. passim
Federal Rule of Criminal Procedure 32(i) .................................................... 17
Federal Rule of Criminal Procedure 32(i)(A)............................................... 12
Federal Rule of Criminal Procedure 32(i)(3)(B) ................................... passim
Federal Rule of Criminal Procedure 32(i)(4)(A)(iii) .................................... 14

Federal Rule of Criminal Procedure 32(c)(1) ............................................... 15
iv
Federal Rule of Criminal Procedure 32(c)(3)(D) ......................................... 12
v
I. INTRODUCTION
The government’s principal argument seems to be that the district
court did conduct Rule 32(i)(3)(B) factfinding, because it explicitly stated
that it would limit the matters considered at sentencing to “the things
[Roueche] personally did, things he personally said on the wiretaps, the
things that he has personally admitted.” E.g., Response, p. 1 (quoting
ER:44). This argument completely misinterprets the district court’s
statement. The district court said that it would consider only acts committed
by Mr. Roueche personally, rather than acts committed by others. But that
court never said what it would do about disputes over what acts Mr.
Roueche himself committed – and there were big disputes on that point. As
the Opening Brief explained, those disputes centered on whether Mr.
Roueche personally committed acts of brutality and violence in support of
his drug trafficking and whether his drug trafficking included not just the
cocaine and marijuana to which he pled guilty but also international trading
in methamphetamine and ecstasy to which he did not plead guilty. Thus, the
government’s main factual argument – that the district court really did
conduct factfinding or eschew reliance on disputed material facts – fails.
The district court did neither. Section II.
1
The government’s legal arguments fail, also. The government asserts
that any district court failure to comply with Rule 32(i)(3)(B)’s factfinding
mandate must be reviewed under the narrow “plain error” standard.
Response, pp. 39-40. The defense, however, clearly argued against the
district court’s consideration of disputed allegations that Mr. Roueche was
violent, that he used violence and brutality to further his drug trades, and that
he trafficked in vast quantities of uncharged drugs. See Opening Brief, pp.
109-23 (summarizing the defense declarations and arguments against facts
alleged by government). That is all the defense needed to do to preserve the
Rule 32(i)(3)(B) error for de novo appellate review. The government’s
argument – that a specific statement that all defense objections to
consideration of disputed facts are based on Rule 32(i)(3)(B) and that they
compel the court to conduct factfinding on the disputes presented to avoid
plain error review – lacks support in case law or logic. Section III.
The government then argues: (1) that Rule 32(i)(3)(B) does not
require “explicit” factfinding or “explicit” declination to consider disputed
facts but only an implicit sense of what the judge did from the transcript; and
(2) that Rule 32(i)(3)(B) is far less important post-Booker 1 because it was
really focused on Guidelines calculations. These arguments lack support in
1
United States v. Booker, 543 U.S. 220 (2005).
2
controlling case law. In fact, this Court has ruled that strict compliance with
Rule 32(i)(3)(B) is required. Section IV.
Finally, with regard to the reliability of the allegations upon which the
district court based its sentence, the government asserts that the hearsay was
sufficiently reliable because it was corroborated by other evidence. The
other evidence that supposedly corroborated it, though, had nothing to do
with the key facts for which that hearsay was offered, that is, to show Mr.
Roueche’s personal use of and involvement in violence and intimidation.
That portion of the hearsay – the portion that really counted – was
uncorroborated. Section V.
II. THE GOVERNMENT CLAIMS THAT THERE WAS NO

RULE 32 ERROR BECAUSE, AS A FACTUAL MATTER,
THE DISTRICT COURT CONSIDERED ONLY MR.
ROUECHE’S OWN ACTS; RULE 32(i)(3)(B),
HOWEVER, REQUIRES FACTFINDING ABOUT EVEN
THE DEFENDANT’S OWN ACTS
A. The Government Argues That There Was No Rule

32(i)(3)(B) Error Because the District Court Considered
Only Mr. Roueche’s “Own” Acts
The government claims that there was no Rule 32 error because the
district court stated that it would consider only Mr. Roueche’s own acts.
Response, pp. 1, 38-39.
B. Rule 32(i)(3)(B) Requires Factfinding About (Or

Declining Reliance on) the Defendant’s “Own” Acts, If
There Are Material Disputes About Them
3
Rule 32, however, requires factfinding about even the defendant’s
own acts, when there is a factual dispute about those acts. The only thing
exempt from the district court’s Rule 32(i)(3)(B) obligation to conduct
factfinding or eschew reliance upon disputed facts, are facts that are not
“material” and that will not influence the length of the sentence.
In this case, however, there were material factual disputes about what
Mr. Roueche actually did. As the Opening Brief explained, there was a
dispute about whether he used violence to traffic in drugs and to force others
to cooperate with him in such trafficking; there was a dispute about whether
he counseled others to use violence to traffic in drugs; and there was a
dispute over which drugs he trafficked in. Opening Brief, pp. 19-23
(summarizing defense declaration and assertions in opposition to
government allegations that Roueche was violent).
The government cannot plausibly claim that it did not present disputed
facts to the district court about what Mr. Roueche, himself, did. The
government is still presenting inflammatory, disputed, facts now, in the
course of this appeal, to tar Mr. Roueche. E.g., Response, p. 4 (Roueche and
“UN Gang … had a reputation for employing ‘extreme violence’ to further
its activities”).
4
C. The District Court’s Statement That it Would Not

Consider Disputed Allegations Concerning Mr.
Roueche’s BOP Transfer Shows That When it Declines
to Consider Certain Disputed Facts, It Knows How to
Make that Clear
The government does accurately summarize a number of facts that the
district court stated it would not rely upon. But those are the allegations that
resulted in Mr. Roueche’s transfer from the Sea-Tac Federal Detention
Center in Washington to Marion, Illinois, during pre-trial proceedings.
Response, pp. 12-17. The government accurately points out that the district
court specifically stated that it would not rely upon those disputed
allegations at sentencing. Response, pp. 15-16.
The Opening Brief pointed out the same thing. Opening Brief, pp. 5-
6, 7-8, 24.
This does not, however, prove that the district court never considered
disputed facts at sentencing. Instead, it proves that when the district court
made a decision not to rely upon disputed facts, it knew how to make that
clear to the parties and how to memorialize that for the record. The district
court did just that with regard to the allegations supporting the BOP transfer
to Marion. The district court did not do that with regard to the allegations
concerning Mr. Roueche’s alleged violence and intimidation in supposedly
running the UN Gang or with regard to Mr. Roueche’s role in transactions in
5
other drugs, in a variety of other countries. The natural conclusion to be
drawn from this contrast is that the district court did not rely on the former
set of disputed facts, which formed the basis for the BOP transfer, but that it
did rely on the latter set of disputed facts – the ones concerning Mr.
Roueche’s supposed violence, intimidation, leadership of the UN Gang
through those means, and extraterritorial transactions in other drugs.
D. Disputes Over Whether The Defendant Used Violence

and Trafficked, Internationally, in Uncharged Drugs, are
“Material”
The government seeks to downplay the significance of the obvious
factual disputes that were presented in the Opening Brief in another way,
also. The government states that the defense did not object to the PSR’s
calculation of the base offense level, based on the amount of drugs used.
Response, p. 18. That is correct. The PSR, however, based its calculations
only on marijuana and cocaine, the drugs in the counts charged to which Mr.
Roueche pled guilty. The PSR did not base its calculations on Ecstasy,
methamphetamine, or other uncharged drugs. PSR, ¶86. Those other
uncharged drugs were, however, brought up by the government at
sentencing, in support of the government’s recommended sentence. ER:18.
Thus, the defense decision to make no objection to the PSR’s calculation of
drug amount at sentencing does not support the government’s argument that
6
the defense acquiesced in the district court’s consideration of ecstasy and
methamphetamine.
Similarly, the government argues that there was no defense objection
to the PSR’s conclusion that Mr. Roueche was a leader of the UN Gang and
“involved in, organized, and facilitated every aspect of this conspiracy.”
Response, p. 19 (quoting PSR). That is correct. This portion of the PSR,
however, did not make any allegations about Mr. Roueche’s personal use or
promotion of violence against enemies or even against his alleged
subordinates or coworkers. The allegations of serious acts of violence by
Mr. Roueche, and by others at Mr. Roueche’s personal direction, were
nevertheless argued by the government at sentencing, in support of the
government’s recommended sentence. ER:20-24.
The government properly acknowledges that its own sentencing
memorandum went much further in alleging that Mr. Roueche was
personally involved with leading the UN Gang through “threats” of force
and violence and with firearms and trafficking in uncharged drugs, including
international trafficking. Response, p. 25 (citing government sentencing
memorandum). See also Response, p. 32-33 (acknowledging that its
sentencing presentation began with allegations of Mr. Roueche’s own use of
violence). The government further acknowledges that the defense moved to
7
strike disputed portions of the government sentencing memorandum and
supporting documents, and that the defense warned the district court that
there would be disputed issues to be resolved at sentencing based on the
government’s sentencing memorandum and supporting declarations.
Response, p. 26. The government even admits that the defense filed a
Memorandum on Sentencing Disputes and that that Disputes memorandum
specifically objected to consideration of allegations concerning Mr. Roueche
being involved in violence. Response, p. 27. The government further
concedes that Mr. Roueche specifically objected to allegations that Mr.
Roueche directed others to commit crimes of violence – such as the
allegation that he directed Ken Davis “to put a gun in the driver’s mouth to
force him to disclose the whereabouts of the [missing] load [of marijuana].”
Response, p. 29. The government neglects to mention that the district court
denied the defense request to strike the objectionable declarations containing
these disputed allegations, but that happened, also. STR:3; ER:9.
There was also a defense objection to the PSR allegations concerning
trafficking in vast quantities of uncharged drugs. CR:343, Appendix A, p. 3;
ER:336.
Somehow, the government still argues that these were not real or
material disputes and that the district court did not really consider them,
8
even though the government and U.S. Probation presented them and, in the
district court, argued that that court should consider them. Response, p. 47.
The government must believe that violence, brutality, counseling and
soliciting violence, and trafficking in methamphetamine and ecstasy, are no
big “material” deal.
That is totally illogical. They are very serious matters that can affect
sentence. See, e.g., United States v. Johnson, 505 F.3d 120 (2d Cir. 2007)
(affirming sentence rejecting downward departure because of defendant’s
record of violence). Cf. Gall v. United States, 552 U.S. 38 (2007) (complete
lack of violent criminal history can be considered in mitigation of sentence);
United States v. McGhee, 512 F.3d 1050 (8th Cir. 2008) (lack of violence in
commission of offense can be considered in mitigation of sentence).
III. RULE 32(i)(3)(B) LEGAL ISSUES ARE REVIEWED DE

NOVO WHERE THE DEFENSE STATES THAT THERE
IS A DISPUTED ISSUE OF MATERIAL FACT; NO
CITATION TO THAT RULE, OR REQUEST FOR A
RULING ON THE DISPUTES, IS REQUIRED
A. The Government Argues that The Rule 32 Error Was

Not Preserved for Review
The government next argues that the Rule 32 error was not preserved
in the court below and, hence, is subject to plain error review. The basis for
this argument seems to be that even though the defense disputed material
facts in a Memorandum of Disputed Facts and in its sentencing

9
memorandum, the defense began its sentencing presentation without a
“request [for] an evidentiary hearing.” Response, p. 33.
The Response does acknowledge that the defense further stated that
“the declarations we submitted raise extraordinary doubts about some of
those informants that they’re [the government] relying upon.” Response, p.
33 (quoting ER:30).2 The Response nevertheless concludes that this was not
enough of a signal to the district court that there were disputed facts to be
resolved at sentencing.
B. The Defense Need Do No More Than Alert the District

Court to the Existence of a Disputed Material Fact to
Get De Novo Review
The government errs in claiming that the defense must do more than
alert the court to a material factual dispute before it is entitled to district
court factfinding on that dispute and to de novo appellate review of any lack
of factfinding. all the defendant must do is alert the district court to the
2
Interestingly, the government cites to this portion of the sentencing
transcript as somehow conceding that factual disputes need not be resolved.
Response, p. 33. In context, however, it is clear that the defense is here
emphasizing the material factual differences between the government’s
assertions and declarations, on the one hand, and the defense assertions and
declarations, on the other, and that the defense is further suggesting that the
government’s claims are so lacking in credible support from the plea, the
admissions, or the declarations, that they could not possibly increase the
sentence. There is no other plausible interpretation of the defense comments
at sentencing, given the time and effort that the defense put into obtaining
declarations refuting the government’s factual claims about Mr. Roueche’s
personal use and promotion of violence.
10
existence of a factual dispute. As one Court has explained: “[w]hen a
defendant disputes facts from a PSR purporting to support a sentencing
enhancement, the district court’s Rule 32(i)(3)(B) obligation is invoked.”
United States v. Orr, 567 F.3d 610, 614 (10th Cir. 2009) (citation omitted)
(stating that after that obligation is invoked by raising disputed facts,
appellate review is de novo). Accord United States v. Tindall, 519 F.3d
1057, 1062 (10th Cir. 2008) (“[T]o invoke the district court’s Rule 32 fact-
finding obligation, the defendant is required to make specific allegations of
factual inaccuracy.”); United States v. White, 492 F.3d 380, 414 (6th Cir.
2007) (de novo review of whether sentencing court violated Rule 32(i)(3)(B)
by failing to make an independent finding, where the defense disputed
government’s allegations; duty to make independent findings triggered by
factual dispute alone).
This Court itself explained, in United States v. Santiago, 466 F.3d
801, (9th Cir. 2006), that the defendant has a duty to bring the factual
dispute to the attention of the district court to gain Rule 32 factfinding and
appellate review of that factfinding; there is no additional duty to make a
specific objection to the failure to conduct such factfinding after the
objection to the government’s version of the facts has been presented to the
district court:
11
“A specific objection provides the district court with an

opportunity to address the error in the first instance and allows
this court to engage in more meaningful review.” United States
v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004); see United States
v. Carter, 219 F.3d 863, 866-67 (9th Cir. 2000) (“[R]esolving a
defendant’s factual objections to the PSR on the record ensures
meaningful appellate review of the sentence.”). Though the
district court may have had concerns about the PSR, when
counsel for Santiago did not object, the district court was
entitled to conclude, without further analysis, that its concerns
were unjustified. See Fed. R. Crim. P. 32(i)(3)(A) (“At
sentencing, the court . . . may accept any undisputed portion of
the presentence report as a finding of fact. . . .”.
Other circuits addressing similar issues have reached the

same conclusion. See Bostic, 371 F.3d at 871-72 (reviewing a
sentence for plain error when the defendant filed a downward-
departure motion before the sentencing hearing, the district
court asked for the opinion of government counsel, and the
government failed to object); United States v. Hansley, 54 F.3d
709, 715 (11th Cir. 1995) (applying the plain error standard of
review when the district court asked for objections to the PSR’s
drug-quantity attribution and the defendant provided none).
We thus hold that our review is limited to review for

plain error when counsel has not objected to any part of the
PSR, whether or not the district court has expressed concerns,
doubts, or qualifications regarding the PSR’s drug-quantity
calculation. ...
Id. at 803-04 (emphasis added).
Thus, in this Court’s Rule 32(i)(3)(B) cases (and its Rule 32(c)(3)(D)
cases under the prior version of the rule), this Court has consistently applied
de novo review where the defense explicitly disputed facts alleged by the
government or the Presentence Report – even where there is no mention of a
12
specific Rule 32(i)(3)(B) objection or request for factfinding. E.g., United
State v. Carter, 219 F.3d 863 (9th Cir. 2000). See also United States v.
Ressam, 593, F.3d 1095, 1122 (9th Cir. 2010) (holding that this Court
reviews issues concerning procedural errors affecting sentencing decisions
de novo, even where the issue was not raised in the district court and noted
raised by either party (on appeal)). Accord United States v. Evans-Martinez,
__ F.3d __ (9th Cir. 2010), 2010 U.S. App. LEXIS 13929 (No. 09-10098)
(July 8, 2010) (same).
The reason that this Court has taken such an approach is important; it
is in large part to “ensure[] meaningful appellate review of the sentence.”
Carter, 219 F.3d at 866-67 (citations omitted). Not much meaningful
appellate review would be ensured if the government’s suggestion – that
existing law should be changed to require a specific reference to Rule 32
before de novo review can occur, even though the material factual dispute is
identified – is followed.
It is true that there is contrary authority, but not from this Circuit.
Despite the Tenth Circuit decisions cited above requiring only a factual
dispute rather than a specific Rule 32(i)(3)(B) objection or request for Rule
32(i)(3)(B) factfinding to preserve this error for de novo review, another
Tenth Circuit decision seems to require a specific Rule 32 (i)(3)(B) objection
13
to obtain such de novo review of a district court’s failure to make findings
concerning material disputed facts. United States v. Cook, 550 F.3d 1292,
1298 (10th Cir. 2008) (requiring explicit Rule 32 objection to gain de novo,
rather than plain error, review). However, as the decisions cited above
show, this Court requires only a defense objection to a government
allegation concerning a material fact. The defense did lodge such objections
to consideration of government allegations of Mr. Roueche’s personal
violence, personal solicitation and counseling of violence, and personal
trafficking, including extraterritorial trafficking, in volumes of other
uncharged drugs.
It is also true that the government cites decisions in its Response in
support of the supposed need to specifically request Rule 32(i)(3)(B)
factfinding (rather than just specifying which material facts are disputed) to
trigger the district court’s factfinding duty. It cites United States v. Waknine,
543 F.3d 546, 551 (9th Cir. 2008), and United States v. Berry, 258 F.3d 971,
976 (9th Cir. 2001), to support this supposed rule. Response, p. 39.
Neither of those cases dealt with this issue, though. In Waknine, there
was not even a Rule 32(i)(3)(B) factfinding issue; instead, the appellant
argued that, “the district court violated Rule 32(i)(4)(A)(iii) of the Federal
Rules of Criminal Procedure by not giving the government an opportunity to
14
speak before imposing a sentence.” This Court reviewed for plain error
because there had been no objection on this ground below. The Waknine
decision thus sheds no light on whether a specific objection, to specifically
disputed facts, like the ones raised in Mr. Roueche’s case, preserve a Rule
32(i)(3)(B) error for review. United States v. Waknine, 543 F.3d 546, 551.
In Berry, there was not even a preservation of error issue raised.
Instead, the defendant-appellant in that case argued “in the alternative that
because the district court did not hold an evidentiary hearing, it was
compelled by Federal Rule of Criminal Procedure 32(c)(1) to make express
factual findings regarding the reliability of his co-defendants’ hearsay
statements.” Berry, 258 F.3d 971, 976. The standard of review in this Court
was not addressed.
The rest of the “plain error” cases cited in this portion of the Response
brief are just general plain error cases; they provide no insight about
preserving the sort of Rule 32(i)(3) (B) error alleged in this case. Response,
p. 40.
Thus, under this Court’s authority, the error is preserved for de novo
review.
The government’s “plain error” argument errs in another way, also.
The government consistently argues that the defense failed to object to most
15
portions of the Presentence Report and, hence that Mr. Roueche is not
entitled to de novo review for that reason. E.g., Response, p. 42 (arguing
that Rule 32 requires factfinding on disputed matters “concerning the
presentence report”). Rule 32, however, is not limited to the resolution of
factual disputes over the presentence report. It applies – by its terms – to
“any disputed portion of the presentence report or other controverted
matter.” Rule 32(i)(3)(B) (emphasis added). The former version of this
Rule, before it was amended, was limited to disputes in the presentence
report. But the current Rule is not.
Thus, it is irrelevant whether the defense objected to material
contained in the Presentence Report (though clearly, the defense did do so,
see CR:343, Appendix A, p. 3; ER:336). The defense objected to the
government’s sentencing memorandum, sentencing declarations, and
sentencing presentation, to the extent they tagged Mr. Roueche with
personally committing and personally promoting extreme violence and
brutality in the conduct of the marijuana and cocaine trade. That is all the
defense needed to do to trigger Rule 32(i)(3)(B)’s obligations.
IV. THE GOVERNMENT CLAIMS THAT THERE WAS NO

RULE 32 ERROR BECAUSE THE DISPUTES DID NOT
CONCERN GUIDELINES; BUT RULE 32(i)(3)(B)
REQUIRES FACTFINDING ABOUT EVEN NON-
GUIDELINES MATERIAL FACTS
16
A. The Government Argues That Rule 32(i)(3)(B) Applies

Only to Guidelines Calculations and that Implicit
Compliance Suffices
The government argues that there were no defense objections to the
Guidelines calculations that the court adopted, so once again there can be no
Rule 32 error. E.g., Response, pp. 45-46.
B. Rule 32(i)(3)(B) Is Not Limited to Guidelines

Calculations
Rule 32, however is not limited to Guidelines calculations. See, e.g.,
United States v. Rodriguez-Luna, 283 Fed. Appx. 485, 486 (9th Cir. 2008)
(“Initially, we reject the government’s suggestion that … the district court
was not required to make a Rule 32 determination in these circumstances.
The government reads [prior case] to stand for the proposition that a district
court is required to comply with Rule 32 only where the factual dispute
directly concerns sentencing enhancements under the guidelines. Under the
government’s reasoning, because the present factual dispute did not affect
the calculation of the guidelines range of Rodriguez-Luna's sentence, Rule
32’s mandate is not operative.”; that interpretation is rejected and the
sentence is vacated for failure to comply with Rule 32(i)).
Nor would it make any sense to interpret Rule 32 to be so limited. In
the post-Booker era, Guidelines calculations are just one factor that the
district court considers in imposing sentence. Rule 32 quite logically

17
requires the district court to resolve all factual disputes, or eschew reliance
upon all disputed factual matters, that influence sentencing – and that
involves far more than Guidelines disputes. As the Court is undoubtedly
aware, that involves all factual data permissibly considered under 18 U.S.C.
§3553(a).
C. Rule 32(i)(3)(B) Does Require “Express” or “Strict”

Compliance
Next, the government argues that the district court does not need to
“expressly” comply with Rule 32; substantial compliance by not mentioning
disputed facts when it sentences, is enough. Response, p. 32 (“Although the
court did not expressly state that it was disregarding all disputed facts, that
fact is implied by its statements regarding the limits of what it considered in
crafting the sentence.”).
That is contrary to the law of this Circuit. This Court has ruled that
strict compliance with Rule 32 is required. United States v. Herrera-Rojas,
243 F.3d 1139, 1142 (9th Cir. 2001). Failure to make such findings requires
resentencing, under this Court’s binding precedent. United States v. Carter,
219 F.3d 863 (vacating sentence and remanding for resentencing because
defendant challenged factual statements in PSR and district court neither
resolved disputed factual issues nor indicated that they lacked relevance).
18
The government even argues that there is no need for such strict
compliance post-Booker, because Booker made the Guidelines less
important. E.g., Response, pp. 42-43. This Court, however, continues to
apply Rule 32(i)(3)(B) post-Booker. United States v. Rodriguez-Luna, 283
Fed. Appx. 485 (defendant entitled to resentencing due to violation of Rule
32(i) by district court’s failure to rule on or declare that it would not
consider whether defendant had been a passenger or the smuggler when
captured by Border Patrol, since matter was in dispute and might have
affected length of sentence). So do the other Circuits. E.g., United States v.
Anton, 353 Fed. Appx. 343, 346 (11th Cir. 2009) (reversing and remanding
due to district court’s failure to make Rule 32(i)(3)(B) findings on
controverted facts); United States v. West, 550 F.3d 952 (10th Cir. 2008)
(vacating and remanding for resentencing based on failure to make findings
on disputed facts), overruled on other grounds, United States v. McConnell,
605 F.3d 922 (10th Cir. 2010). Since Rule 32 applies to not just presentence
reports, and to not just Guidelines calculations, but to all material disputes
affecting any ingredient of the severity of the sentence, it makes sense that
Rule 32(i)(3)(B) would apply with full force post-Booker – not just to the
formal Guidelines calculation which is no longer outcome-determinative.
19
V. THE HEARSAY EVIDENCE UPON WHICH THE

DISTRICT COURT RELIED WAS NOT
CORROBORATED BY ANY UNDISPUTED EVIDENCE
The government then claims that the hearsay evidence that was
presented to the district court in support of the government’s sentencing
recommendation was sufficiently reliable. First, the government claims that
this information – specifically, the LeClerc declaration – should be
considered reliable because the defense declarations containing information
in opposition were unreliable. Response, pp. 50-51.
There is, however, no authority for the rule that a government
declaration gains greater reliability and corroboration if the defense does not
submit convincing, admissible, evidence in opposition. In fact, in one of
this Court’s seminal decisions establishing the rule that uncorroborated
hearsay is inadmissible at sentencing, there was no defense submission on
the disputed factual matter. Still, this Court ruled: “While hearsay
statements may be considered at sentencing, due process requires that such
statements be corroborated by extrinsic evidence.” United States v. Ponce, 51
F.3d 820, 828 (9th Cir. 1995) (emphasis added).
The government points to only two disputed facts in the hearsay
declarations that actually did have corroboration. The first one concerns
support for LeClerc’s assertions about cocaine trafficking. Response, pp.
20
51-52. But Mr. Roueche himself pled guilty to that crime; that was not the
fact that he was disputing. Instead, Mr. Roueche disputed the allegations
concerning personal commission and promotion of violence. Corroboration
of cocaine trafficking does not address that disputed fact.
The second disputed hearsay allegation that the government addressed
is the Davis declaration. Response, p. 52. The government argues that there
was corroboration for a lot of what was in that declaration in Mr. Roueche’s
own admissions. The government acknowledges, however, that Mr.
Roueche never admitted directing the violence alleged there, including
putting a gun in the mouth of a confederate in a show of force to intimidate
him. Id. The government points to no other corroboration of that bit of
hearsay, either. Id.
The government’s discussion of these items of hearsay thus misses the
mark completely. It does not address the materially inculpatory hearsay
allegations concerning violence at all.
//
21
VI. CONCLUSION
For the foregoing reasons, the sentence should be vacated and the case
should be remanded for resentencing.
Dated this 14th day of July, 2010.
Respectfully submitted,
s/Sheryl Gordon McCloud

Sheryl Gordon McCloud, WSBA #16709
Attorney for Appellant Clay Roueche
710 Cherry St.
Seattle, WA 98101
(206) 224-8777; (206) 623-5951 (fax)
sheryl@sgmccloud.com
22
STATEMENT OF RELATED CASES
To counsel’s knowledge, there are no related cases pending in this
Court.
23
CERTIFICATE OF COMPLIANCE WITH
FED. R. APP. P. RULE 32(a)(7)(C)AND NINTH CIRCUIT RULE 32-1
FOR CASE NUMBER 09-30441
I certify that:
Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the
attached Reply Brief is:
Proportionately spaced, has a typeface of 14 points or more and contains
4,570 words.
Dated this 14th day of July, 2010.
Respectfully submitted,

710 Cherry St.
Seattle, WA 98101
(206) 224-8777; (206) 623-5951 (fax)
24
CERTIFICATE OF SERVICE
I hereby certify that on July 14th, 2010, I electronically filed the

foregoing with the Clerk of the Court of the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served
by the appellate CM/ECF system.

710 Cherry St.
Seattle, WA 98101
(206) 224-8777; (206) 623-5951 (fax)
25

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Case: 09-30441 07/14/2010 Page: 1 of 31 ID: 7404699 DktEntry: 16

UNITED STATES OF AMERICA,

APPEAL FROM THE

The Honorable Robert S. Lasnik

Sheryl Gordon McCloud

II. THE GOVERNMENT CLAIMS THAT THERE

A. The Government Argues That There Was No

B. Rule 32(i)(3)(B) Requires Factfinding About

C. The District Court’s Statement That it Would

D. Disputes Over Whether The Defendant Used

III. RULE 32(i)(3)(B) LEGAL ISSUES ARE

A. The Government Argues that The Rule 32 Error

B. The Defense Need Do No More Than Alert the

IV. THE GOVERNMENT CLAIMS THAT THERE

A. The Government Argues That Rule 32(i)(3)(B)

B. Rule 32(i)(3)(B) Is Not Limited to Guidelines

C. Rule 32(i)(3)(B) Does Require “Express” or

V. THE HEARSAY EVIDENCE UPON WHICH

VI. CONCLUSION ........................................................................ 22

STATEMENT OF RELATED CASES ............................................................ 23

CERTIFICATE OF COMPLIANCE ................................................................ 24

United States v. Booker,

United States v. Bostic,

United States v. Evans-Martinez,

United States v. Johnson,

United States v. McGhee,

United States v. Orr,

United States v. Ponce,

United States v. Ressam,

United States v. Rodriguez-Luna,

United States v. Santiago,

United States v. Tindall,

United States v. White,

FEDERAL STATUTES AND RULES

Federal Rule of Criminal Procedure 32 ................................................. passim

Federal Rule of Criminal Procedure 32(i) .................................................... 17

Federal Rule of Criminal Procedure 32(i)(A)............................................... 12

Federal Rule of Criminal Procedure 32(i)(3)(B) ................................... passim

Federal Rule of Criminal Procedure 32(i)(4)(A)(iii) .................................... 14

Federal Rule of Criminal Procedure 32(c)(3)(D) ......................................... 12

The government’s principal argument seems to be that the district

court did conduct Rule 32(i)(3)(B) factfinding, because it explicitly stated

that it would limit the matters considered at sentencing to “the things

[Roueche] personally did, things he personally said on the wiretaps, the

things that he has personally admitted.” E.g., Response, p. 1 (quoting

ER:44). This argument completely misinterprets the district court’s

the Opening Brief explained, those disputes centered on whether Mr.

Roueche personally committed acts of brutality and violence in support of

conduct factfinding or eschew reliance on disputed material facts – fails.

The district court did neither. Section II.

The government’s legal arguments fail, also. The government asserts

mandate must be reviewed under the narrow “plain error” standard.

district court’s consideration of disputed allegations that Mr. Roueche was

he trafficked in vast quantities of uncharged drugs. See Opening Brief, pp.

109-23 (summarizing the defense declarations and arguments against facts

alleged by government). That is all the defense needed to do to preserve the

Rule 32(i)(3)(B) error for de novo appellate review. The government’s

argument – that a specific statement that all defense objections to

compel the court to conduct factfinding on the disputes presented to avoid

require “explicit” factfinding or “explicit” declination to consider disputed

really focused on Guidelines calculations. These arguments lack support in

Rule 32(i)(3)(B) is required. Section IV.

sufficiently reliable because it was corroborated by other evidence. The