Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

MEMORANDUM^** 

Arnulfo Bonillas seeks resentencing based on his contention that the district court failed to comply with Federal Rule of Criminal Procedure 32(c) (3) (D) when sentencing Bonillas to two consecutive seven-year terms for possession with intent to distribute cocaine (count 1) and conspiracy to distribute cocaine (count 2). Because the district court explicitly stated it would not consider the unproven allegations in the presentence report, we affirm the sentence. To comply with 32(c) (3) (D), however, we remand for the district court to append to the presentence report a written record indicating its non-reliance on the allegations.

To comply with Rule 32(c) (3) (D) the sentencing judge must first make a finding concerning the controverted information or determine that a finding is not necessary because the controverted information will not be considered in sentencing. Second, the judge must append to the presentence report a written record of the court's findings or determinations.

Bonillas' presentence report included an allegation that he had previously been involved in marijuana smuggling. At his sentencing, however, the district court stated "I am not going to use it [the allegations of marijuana smuggling] as a sentencing factor." United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir. 1985) (district court judge's assurance that certain allegations would not be considered in sentencing constituted sufficient compliance with Rule 32(c) (3) (D)). Thus, the district court complied with the first requirement of Rule 32(c) (3) (D).

The judge must then append to the presentence report a written record of the court's findings or determinations. The written record may be a copy of the defendant's objections and the portion of the sentencing transcript indicating the court's response or a simple form appended to the report on which it has entered its findings or determinations. See Fed. R. Crim. P. 32(c) (3) (D) Advisory Committee Notes. Neither was done in Bonillas' case and therefore we must remand for compliance. The district court, however, need not resentence the defendant. United States v. Fernandez-Angulo, No. 87-3068, Slip Op. 2731, 2737 (March 13, 1990).

AFFIRMED AND REMANDED.