Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1986)

MEMORANDUM^** 

Appellant, Gomez, appeals the imposition of a seven year sentence in custody following his pleading guilty to conspiracy to possess with intent to distribute cocaine. He contends his sentence was based upon false and unreliable information in the presentence report and that there should have been an evidentiary hearing to determine the reliability of the information used in fixing his sentence. We affirm.

FACTS

The probation officer's initial presentence report recommended a six year sentence in custody but was challenged by counsel for Gomez as false and unreliable. The probation officer responded to this challenge with a supplemental presentence report. Eleven days later another supplemental presentence report based on informants' statements made in connection with investigations of persons other than Gomez was made available. Although the names of the informants were not revealed their statements were attached to the report and the probation officer indicated that they had agreed to testify if required by the court. This second supplemental report recommended a sentence of eight years in custody. Counsel for Gomez continued to challenge the probation officer's reports as unreliable.

A sentencing hearing was held on September 12, 1986 in which the court addressed twelve disputed items in the presentence reports that counsel of both parties had identified. The court disregarded seven of these items and made specific findings with respect to five. These were that (1) Gomez used cocaine himself, (2) Gomez's company, Furete Distributing, was a front for narcotics activity, (3) Gomez had ties to a drug organization run by Arturo Miramontes, (4) Gomez controlled a transfer of cocaine to Miramontes, and (5) Gomez supplied narcotics to other individuals.

At the conclusion of the sentencing hearing, Gomez was sentenced to seven years in custody.

DUE PROCESS

Gomez contends that the court used information in sentencing that was false and unreliable as a basis of his sentence and in so doing deprived him of liberty without due process of law. We reject this contention. The presentence report adequately supported the sentencing court's inferences and findings set forth above. Cf. United States v. Stewart, 799 F.2d 580, 582 (9th Cir. 1986). The factual basis for the court's finding was substantial and much stronger than that in United States v. Weston, 448 F.2d 626 (9th Cir. 1971), cert. denied, 404 U.S. 1061 (1972). The care with which the court sifted through the twelve disputed items, disregarding seven and accepting five, enhances the reliability of the information on which the sentence is based.

Gomez also insists that an evidentiary hearing is required to provide the due process to which he is constitutionally entitled. This is clearly not the law. See United States v. Miller, 588 F.2d 1256, 1266-67 (9th Cir. 1978). Reliance on the presentence report in the manner in which that was done in this case provided the procedural due process to which Gomez was entitled.

AFFIRMED.