Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1987)

MEMORANDUM^** 

John D. Scheck pleaded guilty to filing a false income tax return under 26 U.S.C. § 7206(1) based on unreported income derived from the sale of stolen property. Scheck appeals from the sentence imposed on that conviction, arguing that the district court erred (1) by failing to grant him an evidentiary hearing on the issue of controverted statements appearing in his presentence report, and (2) by allegedly relying on insufficient evidence that Scheck knew the items in question were stolen at the time of their purchase and/or resale. We affirm.

Whether the district court erred by refusing to grant Scheck an evidentiary hearing depends on the existence vel non of a factual inaccuracy in the presentence report, specifically whether Scheck knew the property was stolen at the time it was purchased and/or resold. An evidentiary hearing under FRCrimP 32 is unnecessary, however, when the district court states that controverted matters will not be taken into consideration in the sentencing. United States v. Petitto, 767 F.2d 607, 611 (CA9 1985).

At the hearing on September 3, 1987, the district court made clear its disbelief in Scheck's protestations of innocence with respect to whether he knew the property was stolen at the time of its acquisition and/or resale. However, the district court judge expressly disavowed any reliance on the challenged information for the purpose of sentencing at the subsequent hearing on September 28, 1987. Such disavowals are accepted at face value by a reviewing court. See Jones v. United States, 783 F.2d 1477, 1481 (CA9 1986). Moreover, the court also declared at the subsequent hearing that it was the uncontroverted state of Scheck's knowledge at the time he filed his fraudulent return, and not when the property was bought, that formed the basis for the sentence imposed. Scheck's arguments to the contrary, without more, do not establish that the challenged information was "demonstrably made the basis for the sentence." United States v. Edwards, 800 F.2d 878, 880 (CA9 1986). Accordingly, we find no abuse of discretion in the court's sentencing decision.

AFFIRMED.