To trigger court's Rule 32 fact-finding obligation, defendant must object to facts in the PSR as "untrue"

United States v. McDonald, 43 F.4th 1090 (10th Cir. 2022) (E.D.Ok.):The panel holds that the district court correctly relied on facts in the presentence report even though McDonald objected to certain facts as unreliable anduncorroborated. The panel said the district court’s duties to rule ondisputed facts as required by Fed. R. Crim. P. 32(i)(3) were not invoked because challenging information as unreliable or not credible is not that same as alleging the information is untrue. Only the latter claim forces the district court to make rulings. In other words, challenging the reliability and/or credibility of an allegation is not the same as saying it is factually inaccurate. An accused has “an affirmative duty to show [] the information in the PSR was unreliable and articulate the reasons why the facts contained therein were untrue or inaccurate.” The panel finds that the circuit’s unpublished case, United States v. Padilla, 793 Fed. App’x 749, 756 n. 4 (10th Cir. 2019) was incorrect.There the panel held that a challenge to the reliability of the government’s evidence in the PSR is sufficient to create a factual dispute and trigger the court’s Rule 32 fact-finding obligation. The McDonald panel said Padilla misinterpreted the published cases onwhich it relied. None of those cases had to decided whether a mere objection to the reliability of the evidence in the presentence report is sufficient to trigger a district court’s fact-finding obligation. The panel explained that “attacking a witness’s credibility or reliability is different than asserting that their statements or information are false.” And it is not enough to dispute inferences drawn from underlying facts or ultimate legal conclusions premised on those facts. Rule 32 is invoked only when objections dispute the underlying facts. Because McDonald challenged only the reliability and lack of corroboration of facts in the PSR, the district court did not err by relying on those facts in deciding whether certain sentencing guidelines enhancements applied. [Practice Tip: Arguably, it is it enough to say that the facts are untrue because the allegations used are uncorroborated or unreliable. Explaining why a statement is unreliable or needs corroboration probably would be helpful.] After dispensing with this procedural issue, the court summarily rejected all of McDonald’s arguments challenging the district court’s use of various guideline enhancements. Irrepsective of McDonald's unreliable and uncorroborated evidentiary arguments, the drug quantity enhancement was supported by the amounts found by law enforcement or described by co-conspirators as having been received from or supplied to McDonald. Similarly, enhancements for credible threat or use of force, obstruction of justice and aggravated role were proven by co-conspirator statements or recorded jail calls. Of note: the panel seemingly lowers the degree of proof necessary for the “organizer” enhancement in USSG § 3B1.1. There is “no requirement that the defendant organize multiple individuals; providing instructions to even one person regarding the criminal activity can satisfy this enhancement.” It doesn’t matter if the accused did not have any hierarchical control over other participants. If he “devised a criminal scheme, provided the wherewithal to accomplish a criminal objective, and coordinated and oversaw the implementation of the conspiracy,” then the enhancement can be applied.