Unpublished Disposition, 859 F.2d 924 (9th Cir. 1987)

MEMORANDUM^** 

On June 28, 1985, Steven Roy South pleaded guilty to one count of bank robbery and one count of armed bank robbery, in violation of 18 U.S.C. § 2113(a) (d). On August 15, 1985, the district court sentenced South to two concurrent ten-year prison terms. On July 14, 1986, South filed a pro se motion under Fed. R. Crim. P. 35 asking the district court to correct his presentence investigation report. The district court denied the motion. South appeals.

South's request for correction of his presentence report was initially entitled a "motion to correct erroneous information contained in the presentence investigation report." He stated his motion was made under Fed. R. Crim. P. 35(a).¹  In a subsequent letter to the court, South referred to his request as a "petition for a Rule 32." In his motion, South complained that the Parole Commission ranked his offense severity rating as a category seven based on allegations in the presentence report that he had committed other bank robberies in addition to the two to which he pleaded guilty. South also alleged that the Bureau of Prisons used this severity rating to preclude his incarceration at Terminal Island, a less secure facility that is closer to his home and family. South asked the district court to delete all references in the presentence report to the other bank robberies. South did not challenge the validity of his sentence.

The district court properly denied South's belated attempt to challenge allegations in the presentence report, because South had failed to challenge the report at the time of sentencing. The district court stated that " [t]here is no indication that defendant objected to this information in the PSR before sentencing". South does not contest this fact; he claims that he instructed his attorney to challenge the presentence report, but that she refused to do so.

Where a defendant fails to object under Fed. R. Crim. P. 32(c) (3) (A) to a presentence report's alleged inaccuracies at the time of sentencing, he has waived any future claim that his sentence violates due process because it was based on false or unverified information. United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981); United States v. Leonard, 589 F.2d 470, 472 (9th Cir. 1979). A non-objecting defendant also waives his right to have the sentencing court make factual findings as to the disputed allegations. See Donn, 662 F.2d at 824 ("Donn waived his right to challenge the presentence report" because his attorney did not object to the report at sentencing); Leonard, 589 F.2d at 472 (purpose of Rule 32(c) (3) (A) is to enable presentence report challenge at time of sentencing; to allow defendant "an evidentiary hearing at this late date, would reopen all sentences for indefinite periods"). See also, United States v. Ursillo, 786 F.2d 66, 69 (2d Cir. 1986) ("We have found no reported case in which a court held that Rule 32 standing alone furnished the jurisdictional basis for a belated post-sentencing attack on the accuracy of a presentence report.").² 

Moreover, South's motion, which challenged neither his conviction nor the imposition of sentence, should have been brought as a habeas petition under 28 U.S.C. § 2241 in the district in which he is confined.³  See United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984) (proper attack on execution of sentence is via section 2241, which must be filed where petitioner is incarcerated); United States v. Leath, 711 F.2d 119, 120 (8th Cir. 1983) (district court should not have considered untimely motion to correct presentence report under either section 2255 or Rule 35 because defendant did not contest validity of sentence; court had no jurisdiction to construe the motion as a section 2241 petition because it was filed in the wrong district); Elliott v. United States, 572 F.2d 238, 239 (9th Cir. 1978) (proper remedy for claim that Parole Commission relied on inaccurate information is habeas petition).

South contends that the district court erred because it failed to address his claim that his trial attorney denied him effective assistance of counsel by failing to object to the other bank robbery allegations at sentencing, despite South's instructions that she do so. South also suggests that his guilty plea was defective because it was based on his attorney's incorrect advice that his parole guideline range would be 48-60 months, instead of the 78-110 months arrived at by the Parole Commission. Neither of these contentions is properly before this court, however, because South did not make these claims until after the district court denied his motion to correct the presentence report, which is the only order South has appealed.

In his motion to correct the presentence report, South did not allege either that he had instructed his attorney to challenge the report, or that he would not have pleaded guilty had he known the correct parole guideline range. Following the district court's denial of his motion, South filed a timely notice of appeal and then filed a "reconsideration motion for review and/or reconsideration".⁴  It was in this "reconsideration" motion that South first alleged that when he learned his parole guideline range would be 78-110 months, he instructed his attorney to object and she refused to do so. The district court denied this motion on June 26, 1987, and it appears from the district court docket sheet that South did not appeal this order.

South complains that the district court's denial of his motion leaves him without any remedy. If South believes that his conviction should be vacated because his guilty plea was involuntary, however, he can raise this claim in a 28 U.S.C. § 2255 motion. Additionally, there are administrative remedies by which South can dispute the accuracy of information used in parole decision, see 28 C.F.R. Sec. 2.26(c) (4) (1987), and challenge alleged inaccuracies in the presentence report, see 28 C.F.R. Sec. 2.19(c). See also Fendler v. United States Parole Commission, 774 F.2d 975, 979 9th Cir. 1985) (request for expungement of alleged inaccuracies in presentence report denied as unnecessary because report can be challenged through Parole Commission procedures).

AFFIRMED.