NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ________________ No. 19-1543 ________________ UNITED STATES OF AMERICA v. FRANCISCO SANTOS, also known as F.S.S., also known as A.C.M., also known as LUIS COLON, Appellant ________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 5:18-cr-00215-001) Honorable Edward G. Smith, U.S. District Judge ________________ Submitted Under Third Circuit L.A.R. 34.1(a) November 14, 2019 Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges (Opinion filed: December 23, 2019) ________________ OPINION* ________________ KRAUSE, Circuit Judge. * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Francisco Santos appeals his judgment of conviction, arguing that the District Court erred under Federal Rule of Criminal Procedure 32(i)(3)(B) at his sentencing hearing. Because we agree and we find that this error was not harmless, we will vacate and remand. Discussion1 A. The District Court violated Rule 32(i)(3)(B) Federal Rule of Criminal Procedure 32(i)(3)(B) requires a District Court—“for any disputed portion of the presentence report or other controverted matter”—to “rule on the dispute or determine that a ruling is unnecessary.” This rule is “strictly enforced.” United States v. Electrodyne Sys. Corp., 147 F.3d 250, 255 (3d Cir. 1998). Here, there was a dispute over Santos’s citizenship, and the District Court did not follow Rule 32(i)(3)(B)’s mandate that it either resolve this dispute or determine that a ruling was unnecessary. Santos implicated Rule 32(i)(3)(B) by contesting the Government’s allegation that he was an illegal alien born in the Dominican Republic and asserting that he was actually a United States citizen born in Puerto Rico.2 The District Court then acknowledged the uncertainty of Santos’s immigration status several times during the sentencing hearing, including while it was explaining its sentence, yet it neither ruled on whether Santos was a United States citizen nor rejected the relevance of this disputed fact. Rather, the District Court left room to infer that it did rely on the disputed 1 The District Court had jurisdiction 18 U.S.C. § 3231, and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 2 A party does not need to request an evidentiary hearing in order to trigger Rule 32(i)(3)(B). United States v. Furst, 918 F.2d 400, 408 (3d Cir. 1990). 2 fact: It found that the “issue . . . with [Santos’s] legal status” was “proper argument” for the Government to make, J.A. 102, and only moments after imposing the sentence, stated that it had “no idea if [Santos is] even illegally here in the United States or not.”3 J.A. 118. By failing to either expressly rule on this factual dispute or expressly disclaim reliance on it, see Electrodyne, 147 F.3d at 255, the District Court violated Rule 32(i)(3)(B). B. Santos Preserved his Objection to the Rule 32(i)(3)(B) Violation A party may preserve an objection to a procedural sentencing error by making an objection “when the procedural error be[o]me[s] evident,” and “need not repeat ...
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