Unpublished Disposition, 841 F.2d 1130 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Gilbert Sanchez, a federal prisoner serving a seven year sentence for distribution of cocaine in violation of 21 U.S.C. § 841(a), appeals the order of the district court denying his motion to correct sentence. Sanchez claims he was denied due process by the district court's increase of his sentence and by the imposition of a sentence lengthier than that of his co-defendants, and that the district court violated Federal Rule of Criminal procedure 32(c) (3) (D) by failing to make explicit findings resolving contested representations in the presentence report. Finding no merit in these contentions, we affirm.¹ 

Sanchez first contends that his ultimate sentence is fundamentally unfair because it increased his term of imprisonment. We disagree. Following his initial sentencing to seven years imprisonment plus ten years of special parole and a $10,000 fine, Sanchez moved to reduce his sentence pursuant to Federal Rule of Criminal Procedure 35. In his moving papers Sanchez sought a reduction to five years or, in the alternative, designation of an early parole eligibility date under 18 U.S.C. § 4205(b) (1).²  The district court responded by issuing two orders which apparently sought to clarify Sanchez's parole eligibility but succeeded only in confusing the issue. Finally, the court issued a straight-forward third order informing Sanchez that he would be eligible for parole after serving 1/3 of his term. Sanchez reads the prior orders as reducing his sentence and the third as illegally increasing his sentence to seven years. We find no basis for Sanchez's reading of the orders. Since we find no increase in his sentence, his argument fails.

Next, Sanchez argues there was no basis for the imposition of a longer sentence than that imposed on his cohorts.³  Sanchez fails to consider his role as the supplier of the cocaine, his prior conviction, and the evidence that drug-dealing was his occupation, all of which distinguish him from his cofelons and amply support the harsher sentence. The district court did consider these factors and thereby satisfied its obligation to individualize his disparate sentence. See United States v. Chiago, 699 F.2d 1012, 1014 (9th Cir.), cert. denied, 464 U.S. 854 (1983). Additionally, Sanchez's allegation of sentencing duplicity is unfounded. He asserts that the sentencing judge assured him a sentence similar to that of Priscal and Plotkin. We find no such promise in the record.⁴ 

Finally, Sanchez complains that the district court failed to explicitly resolve material factual disputes over the content of the presentence report as required by Federal Rule of Criminal Procedure 32(c) (3) (D). Specifically, he argues that the presentence report stated that he was more culpable than his codefendants, that he was a major source of cocaine, and that he possesses a wealth of knowledge regarding the workings of the Miami and California cocaine trade. The fatal flaw in Sanchez's argument is that these statements were contained only in the government's sentencing memorandum. See CR 65; CR 88 at 17-21. Federal Rule 32(c) (3) (D) imposes no duty to resolve alleged misstatements that do not reach the presentence report.

AFFIRMED.