Unpublished Disposition, 874 F.2d 817 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 817 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Leopoldo Hernandez PILOTO, Defendant-Appellant.

No. 88-5018.

United States Court of Appeals, Ninth Circuit.

Submitted*  March 23, 1989.Decided April 21, 1989.

Before MERRILL, EUGENE A. WRIGHT and BEEZER, Circuit Judges.


MEMORANDUM** 

Piloto pleaded guilty to one count of knowingly and intentionally possessing cocaine with an intent to distribute in violation of 21 U.S.C. § 841(a) (1). At the sentencing hearing Piloto alleged that the presentencing report contained two factual inaccuracies. He challenged the statements that he was a primary cocaine distributor in a large cocaine organization, and that he delivered 1.5 million dollars for laundering cocaine proceeds.

Thereafter the court entered judgment, sentencing Piloto to serve a twenty-year prison term. Piloto appeals, contending that the district court erred under Fed. R. Crim. P. 32(c) (3) (D) by failing to make certain findings of fact and by failing to attach a copy of its findings to the presentencing report. At the sentencing hearing, the district court had conceded that Piloto's version of the facts was correct thereby implying that it would not take the alleged inaccuracies into account in his sentencing. However, the court thereafter did allow the government to argue that Piloto's role as a primary cocaine distributor and his money laundering activities were relevant to the sentencing decision. No findings were made.

In United States v. Baron, 860 F.2d 911 (9th Cir. 1988), the district court stated that it would not rely on certain disputed materials for sentencing purposes. However, thereafter it did allow the prosecution to argue that the disputed information was relevant to sentencing. This court remanded for resentencing, stating that if the district court "had not intended to rely on those statements, it presumably would have cut the prosecutor off, rather than listening to argument about the information." 860 F.2d at 919.

Here, as in Baron, the record is unclear as to whether the district court relied on the disputed information. Strict compliance with Rule 32(c) (3) (D) is required and failure to comply must result in remand where it is questionable whether the trial court relied on the contested items. Id.

Judgment is vacated and the matter is remanded for resentencing and the making of findings.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

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