Unpublished Dispositionedward Lee Vinson, Petitioner-appellant, v. United States of America, Respondent-appellee, 815 F.2d 706 (6th Cir. 1987)

ORDER

This matter is before the Court upon consideration of appellant's motion to proceed in forma pauperis on appeal. This case has been referred to this panel pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record and appellant's informal brief, this panel unanimously agrees that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Appellant contends that he must be resentenced because the district court failed to make a determination pursuant to Rule 32(c) (3) (d), Federal Rules of Criminal Procedure, after appellant challenged matters contained in his presentence investigation report at sentencing. Although it is difficult to determine whether the district court substantially complied with Rule 32(c) (3) (d) from the record before this Court, it is concluded that any failure to comply was harmless error. See United States v. Eschweiler, 782 F.2d 1385, 1390 (7th Cir. 1986). A careful review of the record reveals that the presentence report was not in error. The district court therefore correctly dismissed this action brought pursuant to 28 U.S.C. § 2255.

The presentence report was scrutinized by the district court after appellant filed a timely motion to correct or reduce his sentence under Rule 35, Federal Rules of Criminal Procedure. Appellant's allegations of error in the presentence report were refuted through the testimony of appellant's probation officer. The officer produced certified copies of each prior conviction listed in the report, and testified that the report correctly identified the caliber of weapon discharged by appellant in connection with the offense. In any event, the caliber of the weapon discharged does not affect the offense severity rating given appellant. See 28 C.F.R. Sec. 2.20 (1986). At the conclusion of the Rule 35 hearing, counsel for appellant conceded that the motion was "simply a plea for mercy." We conclude therefore that any failure by the district court to comply with Rule 32(c) (3) (d) at sentencing was harmless error because the accuracy of the report was established at the Rule 35 hearing.

Therefore, appellant's motion to proceed in forma pauperis is granted, and the judgment of the district court is affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.