Unpublished Disposition, 867 F.2d 613 (9th Cir. 1988)

MEMORANDUM^** 

Juan Cortez-Valdez pleaded guilty to one count of conspiring to distribute, and to possess with the intent to distribute, heroin and cocaine and one count of possessing with the intent to distribute heroin and was sentenced accordingly. He now contends that the district court abused its discretion in denying his Fed. R. Crim. P. 35 motion.

At the sentencing hearing, defense counsel challenged the accuracy of two statements in the presentence report. Cortez-Valdez stated that (1) he told the undercover agent that he had 13, not 40, ounces of heroin and (2) the $18,000-per-kilogram figure was mentioned by the informant, not the defendant. The court responded, "All right. Let's turn to the matter of sentence that should be imposed." The court did not otherwise mention the defendant's contentions.

Cortez-Valdez then moved for relief under Rule 35, arguing that he was entitled to resentencing because the sentencing court violated Fed. R. Crim. P. 32(c) (3) (D) by failing to either make findings as to disputed information in the presentence report or determine that such findings were unnecessary because the challenged information would not be relied upon in sentencing. Cortez-Valdez further noted that the district court failed to append its findings to the presentence report. The district court denied Cortez-Valdez's motion.

We review the district court's denial of a Rule 35 motion for abuse of discretion. United States v. Gonzales, 765 F.2d 1393, 1395-96 (9th Cir. 1985), cert. denied, 474 U.S. 1068 (1986).

Here, Cortez-Valdez challenged two statements in the presentence report. The district court failed to make findings as to the disputed facts or state that these facts would not be considered in sentencing. However, this deficiency was corrected at the hearing on appellant's Rule 35 motion when the sentencing court clarified that its sentencing hearing comment, "all right," indicated that it accepted the defendant's version of the two disputed facts, as reflected in notations that the court made at the time of sentencing on its chambers' copy of the presentence report. The court further stated that the contested facts had no effect on the sentence imposed. Thus, the first requirement of Rule 32(c) (3) (D) was satisfied. See United States v. Salas, 824 F.2d 751, 753 (9th Cir.), cert. denied, 108 S. Ct. 465 (1987) (Rule 32 compliance found where failure to fulfill requirements at sentencing was corrected at Rule 35 hearing).

The district court did not order that its findings be appended to the presentence report until July 6, 1988, after appellant filed his notice of appeal. Cortez-Valdez now argues that the district court lacked jurisdiction to order the appending of a portion of the hearing transcript to the presentence report in compliance with Rule 32(c) (3) (D) after the notice of appeal had been filed. We disagree.

In United States v. Edwards, 800 F.2d 878, 883 (9th Cir. 1986), we held that a district court lacked jurisdiction to enter Rule 32(c) (3) (D) findings five months after the notice of appeal was filed. We noted, however, that the court's jurisdiction to order its findings appended to the presentence report might be unaffected by the filing of a notice of appeal. 800 F.2d at 883 n. 8.

Here, at the Rule 35 hearing held prior to the filing of the notice of appeal, the district court clarified its treatment of the two disputed assertions at the time of sentencing. See United States v. Salas, 824 F.2d at 753. The only order entered after the filing of the notice of appeal was the order directing that its findings be appended to the presentence report. The court had jurisdiction to enter an order that was essentially ministerial in nature.

AFFIRMED.