CAFFREY, Senior District Judge.
In April, 1987, the defendant-appellant Jimenez Rivera pled guilty in federal district court to aiding and abetting arson that resulted in death. Defendant-appellant Rivera Lopez pled guilty to procuring commission of arson that resulted in death. The district court sentenced Rivera Lopez to 99 years imprisonment, and sentenced Jimenez Rivera to 75 years. Both defendants now appeal these sentences.
On December 31, 1986, the appellants and a third codefendant started a fire in the ballroom of the Dupont Plaza Hotel in Santurce, Puerto Rico. At the direction of a third codefendant, Escudero Aponte, appellant Jimenez Rivera obtained a can of sterno, and gave it to Escudero. Jimenez and appellant Rivera Lopez then stood so as to hide Escudero while he lit the can of sterno. Their purpose in starting the fire was to put pressure on the hotel management, against whom the defendants' union was engaged in a labor strike. Tragically, the fire spread rapidly through the hotel, killing 97 people.
Pursuant to a plea agreement, appellant Jimenez Rivera pled guilty to aiding and abetting arson that resulted in death, a violation of 18 U.S.C. § 844(i). Appellant Rivera Lopez similarly pled guilty to procuring arson that resulted in death, also a violation of 18 U.S.C: § 844(i). The district court accepted these pleas.
At the sentencing, in return for their guilty pleas and continued cooperation in the arson investigation, the government recommended a maximum penalty of 25 years imprisonment for Rivera Lopez, and 24 years imprisonment for Jimenez Rivera. At this hearing, counsel for Rivera Lopez challenged a number of statements in the probation office's presentence investigation report ("PSI"). The court stated that it would rely basically on the details that were recorded when the plea of guilty was accepted, and on its own judgment of matters as it perceived them.
The court concluded by saying,
The Court then sentenced Rivera Lopez to 99 years imprisonment, recommended that he undergo psychiatric evaluation and treatment, and be afforded all opportunities
The appellants argue that the district court abused its discretion in sentencing them. The appellants contend that the court's remarks at sentencing indicate that the court improperly focused on the severity of the crimes to the exclusion of individual, mitigating factors. This approach, they argue, resulted in a mechanistic sentencing.
In challenging their sentences, the appellants bear a very heavy burden, since the trial court has very broad discretion in sentencing. Wasman v. United States, 468 U.S. 559, 563, 104 S.Ct. 3217, 3220, 82 L.Ed.2d 424 (1984). As such, the trial court's sentence will be overturned only in exceptional cases. United States v. Samalot Perez, 767 F.2d 1, 5-6 (1st Cir.1985). Indeed, the general rule is that when the sentence is within statutory limits, it is not subject to review by an appellate court. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); United States v. Pasarell, 727 F.2d 13, 17 (1st Cir.), cert. denied, 469 U.S. 826, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984).
This court has recognized, however, a narrow exception to this general rule. This court will overturn a sentence where the facts indicate that the court below adopted a rigid, mechanistic approach to sentencing, and failed to consider the individual mitigating circumstances of each defendant. United States v. Wardlaw, 576 F.2d 932, 938 (1st Cir.1978). See also United States v. Foss, 501 F.2d 522, 527-29 (1st Cir.1974). A judge is required to use his or her discretion and individualize the sentence of each defendant. This duty does not, however, prevent a judge from emphasizing considerations such a severity of the crime or the deterrent effect of a harsh sentence. As we noted in Foss,
Foss, 501 F.2d at 528.
We are satisfied that the district court fulfilled its duty to individualize the appellants' sentences. While the judge's comments at sentencing indicate that he placed great emphasis on deterrence and on the deadly results of the appellants' actions, they do not indicate that he failed to consider the individual circumstances of each defendant. To the contrary, the judge's concern over the deaths that resulted from their crime indicates that he determined the sentence in reference to the particular actions of the appellants. The record also shows that a presentence report on each appellant had been prepared, and was reviewed by the judge. The attorneys for the appellants were given the opportunity to, and did, bring all mitigating circumstances to the attention of the judge prior to sentencing. The court, therefore, was well aware of the individual circumstances of each appellant. The fact that appellant Jimenez Rivera received 75 years while appellant Rivera Lopez received 99 years strongly suggests that these individual circumstances were taken into account. While the court did impose sentences that were three and four times longer than those requested by the government, the sentences were still less than the maximum allowed by law.
The appellants next contend that the district court imposed a heavy sentence as punishment for past crimes committed by members of labor unions. Using the appellants as "instruments of retaliation" against other criminals, appellants argue, is an abuse of discretion.
In United States v. Wardlaw, 576 F.2d 932, upon which appellants principally rely, we set aside the sentence of two defendants convicted of importing cocaine. The district court concluded that the defendants were merely drug carriers rather than dealers. Moreover, the defendants had no prior arrests, and had excellent records as young medical students. Despite these mitigating factors, the court imposed harsh sentences on each defendant. Id. at 937. The court's reasoning for imposing such harsh sentences was that by meting out harsh sentences to all drug couriers, people would be less willing to act as couriers. This, in turn, could force the dealers to smuggle the drugs themselves, thus exposing themselves to arrest. Id. at 939. In vacating the sentences, we noted,
The appellants argue that in this case, as in Wardlaw, the judge attempted to punish others by imposing harsh sentences on the defendants. This is an incorrect view of both cases. In Wardlaw, the judge was not trying to punish the drug dealers by sentencing their couriers. Rather, the judge was attempting to force the dealers to smuggle drugs themselves. The judge assumed that if he sentenced all couriers harshly, no one would want to act as couriers. There was no indication, though, that this deterrence would be so effective that the dealers would be forced to smuggle the drugs themselves. Our holding confirmed that a theory as questionable as this may not form the sole basis for sentencing. Id. at 938.
In this case also, the judge was not attempting to punish others by imposing harsh sentences. The judge was understandably concerned with the amount of labor-related crime, and sentenced the appellants with a view towards deterring such crime. Unlike the questionable theory adopted by the judge in Wardlaw, deterrence is a common and permissible consideration in sentencing. See, e.g., Foss, 501 F.2d at 528; United States v. Gomez, 797 F.2d 417, 420 (7th Cir.1986). The district court did not, therefore, base the appellants' sentences on improper considerations.
In a similar argument, the appellants contend that the judge imposed harsh sentences as punishment for crimes that were not before the court. Specifically, the appellants argue that the judge viewed their crime as first degree murder, and sentenced them based on that crime.
The appellants misconstrue the judge's comments. To begin with, the court expressly noted that the murder charges were not before it.
Appellant Rivera Lopez also claims that the district court erred by failing to address allegedly false statements contained in the presentence report.
At the sentencing, the appellant challenged a number of statements in the presentence investigation report ("PSI"). First, the PSI stated that the appellant was a "driving force" behind the fire. The defendant argues that this is incorrect. Second, the PSI noted that the appellant's plan was to force the hotel management, through a number of acts of sabotage, to accept the demands of the union. The defendant argues that this statement was untrue and inaccurate. Third, the PSI suggested that the appellant had dropped out of school because of lax discipline. The appellant, however, argued that he left school in order to support his family. Fourth, the PSI stated that appellant's ex-wife divorced him for cruel and unusual treatment. Appellant claimed that his ex-wife had simply relied upon the most expedient grounds for divorce. Fifth, the appellant challenged the PSI's conclusion that appellant was an "easily agitated and problematic person." Lastly, the appellant objected to the conclusion in the PSI that appellant should be afforded psychiatric counseling. The appellant argued that there was no indication he was suffering from any mental disorders.
In light of these alleged inaccuracies, the appellant contends that the judge was required under Fed.R.Crim.P. 32(c)(3)(D) to make a finding as to each allegation, or to make a determination that the controverted matter was not taken into account in sentencing. Since the court failed to comply with the requirements of Rule 32(c)(3)(D), the appellant argues, he must be resentenced.
Rule 32(c)(3)(D) was promulgated, in part, to assure that the defendant is not prejudiced in the future by any factual errors in the PSI. United States v. Santamaria, 788 F.2d 824, 829 (1st Cir.1986). As the Advisory Committee note on the rule states, the PSI is heavily relied upon by the Bureau of Prisons and the Parole
The government argues, however, that several of the challenged statements are statements of the parole officer's opinions, rather than statements of fact. Such statements, the government contends, are not covered by the rule. The Eighth Circuit Court of Appeals has noted that statements of opinion, or statements that are technically true but create a false impression, do not trigger the requirements of Rule 32(c)(3)(D). See Poor Thunder v. United States, 810 F.2d 817, 825-26 (1987). That court expressed concern that to interpret the rule otherwise would be to turn the rule into a vehicle for verbal quibbles or argumentation about phrasing. Id. at 826. While the danger of such abuse certainly exists, that danger may sometimes be outweighed by the importance of assuring that all information contained in the PSI is accurate. Subtle distortions resulting from incompleteness, innuendo, or ambiguity can be as prejudicial to the defendant as patently inaccurate facts. Stephen A. Fennell and William N. Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv.L.Rev. 1613, 1629 (1988). In this case, the controverted opinions were the statements that the appellant was the driving force behind the fire, and that the appellant was an easily agitated and problematic person. Taken at face value, these statements might arguably have some potential for adversely affecting appellant at sentencing, or later. The question, under Poor Thunder, is close. But we need not answer it — nor, indeed, determine whether Poor Thunder does or does not reflect this circuit's view of the applicable law. Inasmuch as the second, third, and fourth statements which appellant challenged, see supra, are indubitably matters of fact (as opposed to opinion) even under the Poor Thunder formulation, remand will, as we explain below, be required. Thus, since there will be a remand in any event, the practical approach is to treat these two statements, out of an abundance of caution, as also covered by Rule 32(c)(3)(D).
The last statement challenged by the appellant, recommending psychiatric counseling, however, is not covered by the requirements of Rule 32(c)(3)(D). This "statement" was a recommendation by the parole officer as to the appellant's sentence. Such a recommendation is directed to the court at the time of sentencing, and will have no effect on future custody decisions. Clearly, Rule 32(c)(3)(D) was not intended to apply to the sentencing recommendations in the PSI. See Notes of Advisory Committee on 1983 Amendment to Rule 32.
As to the statements other than the last one noted, the requirements of the rule applied. The allegations of inaccuracy were before the court at sentencing. There is no indication that the court made any findings as to the accuracy of the challenged statements. The next question, then, is whether the court relied upon the controverted statements. When presented with the allegations, the court stated
Based on these comments, we are unable to determine whether the district court relied on the statements. Moreover, even if the
The convictions of both appellants are affirmed. Appeal No. 87-1595 is remanded to the sentencing judge for further proceedings consistent with this opinion.