Unpublished Disposition, 874 F.2d 817 (9th Cir. 1989)

MEMORANDUM^* 

Richard Thomas Mandell appeals the denial of his section 2255 motion to vacate his sentences for conspiracy to possess with intent to distribute a narcotic drug and for possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a) (1). Mandell contends that the district court violated Federal Rule of Criminal Procedure 32(c) (3) (D) by failing either to make findings as to controverted facts or a determination that no finding was necessary because the controverted matter would not be taken into consideration in sentencing. Mandell also alleges that he was denied effective assistance of counsel because his attorney failed to advise him of his right to appeal the alleged Rule 32 violation. We affirm on the ground that Rule 32(c) (3) (D) was not violated.

At Mandell's sentencing hearing, his counsel alleged that a statement in the presentence report that the cocaine seized had a street value in excess of three and a quarter million dollars was inaccurate because the value of the cocaine was only $269,000. The report as to the quantity and purity of the cocaine was not controverted. Defense counsel acknowledged that had the case gone to trial, the government would have offered expert testimony that the drugs had a street value between two and a half and three and a half million dollars. Mandell does not dispute the statement on page 5 of the report that he negotiated a price of $43,000 per kilo for the cocaine.

Counsel produced a 1984 brochure entitled The Illicit Drug Wholesale and Retail Price Report published by the United States Department of Justice Drug Enforcement Administration, Office of Intelligence. The brochure listed a kilo of cocaine retailing at $62,000 (50 to 90% purity). The cocaine seized totalled 4,402 grams at 89% purity. The trial judge responded by saying: "If you total that up it comes to $269,000 as opposed to three and a quarter million dollars and it is a significant variance from the amount charged in the report. As I understand it, that is a factor considered on parole. The amount."

Later the Assistant United States Attorney said: "Should I address the issue of the value of the cocaine or is that irrelevant?" The court responded by saying: "No, I don't think that is necessary."

The trial judge's response is a clear holding that she regarded the so called street value of the cocaine as irrelevant. Under these circumstances, we find compliance with Rule 32(c) (3) (D). See United States v. Ibarra, 737 F.2d 825 (9th Cir. 1984); United States v. Feldman, 853 F.2d 648, 665 (9th Cir. 1988), cert. denied, 109 S. Ct. 1164 (1989); United States v. Baron, 860 F.2d 911, 919-20 (9th Cir. 1988).

On page 6 of the presentence report under Prosecution Version it states:

According to the Government, defendant Mandell is the most culpable of the four. He was to receive a profit of $10,000 to $15,000 from the transaction. He was clearly the lead person in negotiations an [sic] was aligned as a middleman between a major supplier of cocaine and buyers, such as the undercover detective represented.

On page 19 of the presentence report under Evaluation it states:

The defendant has pleaded guilty to conspiracy to possess with intent to distribute and possession with intent to distribute a sizeable quantity of cocaine. The defendant planned, discussed, and executed the crime and, in so doing, led others to participate, including his consensual spouse, Drucilla Gallagher.

An alleged inaccuracy in the presentence investigation report was brought to the attention of the sentencing judge by defense counsel in the following fashion:

The rest of what I have to say concerns the evaluation of Mr. Mandell which is at pages 19 and 20 of the report. It was the conclusion of the prosecution and also the conclusion of the Probation Department that Mr. Mandell was the leader of the group, the person that put the deal together and that he was in it for gain and profit.

There is a comment here that his participation led others to participate in this crime. What I wish to say concerning this is that the facts are that Mr. Busby had lent Mr. Mandell some money.

Mr. Mandell didn't pay the money back. This I believe came out at Mr. Busby's trial. Mr. Busby was approached by an individual who turned out to be a government witness about some cocaine. Mr. Busby saw a way to get his money back and contacted Mr. Mandell.

Mr. Mandell then in fact did put together a deal. He put the deal together through Mr. Resnick who in fact was a person who obtained the cocaine. Mr. Mandell led not Busby to participate, he really didn't lead Resnick to participate because I think the government has information that Mr. Resnick is involved in trafficking not in this case alone but in matters that didn't come to be prosecuted.

Mr. Mandell's share was $10,000 which is not an overwhelming amount of money and that it doesn't explain the entire transaction. What Resnick was going to get I would submit was probably a great deal more.

Mr. Mandell did lead Ms. Gallagher into participation in this particular crime. To the extent that he did, this has probably been the most remorseful portion shown by Mr. Mandell.

He has a very deep regret for doing this. He has expressed the regret to me. He has expressed the regret to Mr. Modisett. He has expressed the regret to Mr. Valencia and he has expressed that to the Court in his letter.

The government attorney responded by saying:

Regarding the crime itself, and I am sure this happens in many cases where you have different defendants but everybody is pointing the finger at everybody else, when Resnick was in here he said Mandell was the main one.

Busby in trial said Mandell was the main one. Now Mandell blames Resnick and Busby.

After both the prosecution and defense counsel discussed the relative culpability of the parties, the court responded by saying: "I can't do that. I can't accept that because what I have in front of me is what occurred here, and I have to sentence him based on that."

Mandell does not allege an inaccuracy of any of the facts at pages 6 and 19 of the report upon which the government's opinion of his culpability is based, e.g., Mandell's leading Gallagher to participate, his leading role in the negotiations, his role as a middleman between supplier and buyer, and his projected receipt of $10,000 to $15,000. Mandell's argument that Busby coerced him into participation by threats in an attempt to recover $10,000 he had loaned Mandell does not controvert any factual statement in the report. In fact, the report notes at page 6 that Mandell owed Busby money and that Busby put the deal together and was enthusiastic about the transaction being consummated since he had earlier loaned Mandell $10,000 and likely foresaw Mandell's profit being returned to him as payment on the loan. The report states at page 7 that Busby, just before the transaction, was pressuring and threatening Mandell concerning repayment of a $10,000 loan, and that a cocaine transaction between Busby and Resnick's agent set the stage for the transaction occurring in the instant offense. Similarly, Mandell's argument that Resnick was to receive the bulk of the profits does not allege any factual inaccuracy of the report, which states at page 6 that Resnick's planned profit from the transaction was unknown.

The only statement in the report that Mandell controverts is the opinion or conclusion expressed as to his level of culpability. Rule 32(c) (3) (D) applies to alleged factual inaccuracies and is not triggered when the defendant controverts an opinion or a conclusion.

There was no violation of Rule 32. Accordingly, Mandell's counsel was not ineffective in failing to raise such an issue on appeal.

AFFIRMED.