Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1987)

MEMORANDUM^** 

Bangsberg appeals the eighteen year sentence the district court imposed upon him after a guilty plea. Bangsberg contends that he was deprived of due process because the sentencing court relied on an incomplete reference to a dismissed juvenile charge in his presentence report.

FACTS

On August 18, 1987, Bangsberg was charged with unarmed bank robbery in violation of 18 U.S.C. § 2113(a). Following the charge, Probation Officer Guider prepared a Presentence Pre-Plea Report (PSR) without interviewing Bangsberg. The PSR referred to the bank robbery charged on August 18, two other bank robberies that Bangsberg had admitted committing, and Bangsberg's juvenile and adult criminal records. It also included a reference to a juvenile petition that alleged Bangsberg, at seventeen, had attacked a fifty-four year old woman and taken her purse. The petition had been dismissed.

On September 24, the district court accepted Bangsberg's guilty plea. In return for this plea, the government did not charge Bangsberg with the other two bank robberies he had admitted committing, and recommended a ten year sentence. The court postponed the sentencing hearing for a week to allow time for Guider to interview Bangsberg and submit a more thorough PSR to the court.

Guider submitted an addendum to the PSR based on information Bangsberg supplied. It contained no new information about the purse snatching charge.

At sentencing, Bangsberg's counsel disputed the inclusion of the purse snatching charge in the PSR without a full illumination of the facts underlying the incident. Counsel argued that the PSR should have stated that the prosecutor dismissed the charge after he received Bangsberg's polygraph test results. The court made no specific findings of fact on this matter.

In imposing its sentence the court stated: "Review of [Bangsberg's] past history reflects that he has established a pattern of assaultive behavior, which includes a willingness to inflict bodily injury on others. It does not appear that any supervision offered was effective in deterring his aggressive behavior." The court then sentenced Bangsberg to eighteen years imprisonment.

When Bangsberg's counsel objected to the court's conclusion that Bangsberg had "a pattern of assaultive behavior," the court replied, " [t]hree bank robberies, probation violation, time after time, purse snatching, 54-year-old woman." Bangsberg's counsel then requested that the court consider the polygraph results. The court replied: "His [Bangsberg's] entire behavior is such that I don't think he should be going around threatening bank tellers. It's the order."

Judgment was entered on October 2, 1987. Bangsberg now timely appeals.

ANALYSIS

Because Bangsberg's sentence is within the statutory maximum¹ , we review for constitutional error and for abuse or abdication of discretion. Walker v. Endell, 850 F.2d 470, 476 (9th Cir. 1987); United States v. Rachels, 820 F.2d 325, 328 (9th Cir. 1987).

Bangsberg alleges the district court abused its discretion because it considered the incomplete PSR without further investigation.

A sentencing court has broad discretion to consider information in sentencing a defendant. Walker v. Endell, 850 F.2d at 477; 18 U.S.C.A. Sec. 3661 (West Supp.1988). It may consider prior criminal acts that did not result in convictions. Brothers v. Dowdle, 817 F.2d 1388, 1390 (9th Cir. 1987). It may even consider acquittals. See Walker, 850 F.2d at 477. Therefore, the dismissed juvenile petition at issue here was properly within the scope of the sentencing court's consideration.

A court abuses its discretion when its decision is based on an erroneous conclusion of law or when the record contains no evidence on which the court could have based its decision. United States v. Schlette, 842 F.2d 1574, 1577 (9th Cir. 1988). It may not base its sentence on materially untrue or unreliable information. United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987). The information considered in sentencing, however, need not meet the standards for admission of evidence at trial. United States v. Morgan, 595 F.2d 1134, 1136 (9th Cir. 1979). The information must be supported only by some minimal factual basis to ensure its reliability. See United States v. Petitto, 767 F.2d 607, 611 (9th Cir. 1985). The sentencing judge may decide for himself both the relevance and the reliability of the dismissed purse snatching charge. See Morgan, 595 F.2d at 1138.

Here, Bangsberg concedes that the PSR was neither materially untrue nor unreliable.²  He was given opportunities to clarify the PSR in his interview with Guider and at the sentencing hearing. Due process demands no more. See Petitto, 767 F.2d at 611. Therefore, the sentencing judge did not abuse his discretion in refusing to investigate further.

AFFIRMED.