Unpublished Disposition, 908 F.2d 978 (9th Cir. 1990)

No. 89-16381.

United States Court of Appeals, Ninth Circuit.

Before TANG and NOONAN, Circuit Judges, and LAUGHLIN E. WATERS^* , District Judge.

MEMORANDUM^** 

Peter Villa appeals the district court's judgment denying his 22 U.S.C. § 2255 petition. We affirm.

DISCUSSION

Villa claims ineffective assistance of counsel at the sentencing hearing due to his counsel's failure to challenge alleged errors about the description of his crime in the presentence report. Villa's counsel appears to have chosen to argue for mitigation of the recommended fifteen-year sentence rather than to challenge the details of the offense. We will not reverse a sentence due to tactical or strategic decisions by Villa's counsel. See Strickland v. Washington, 466 U.S. 668, 690-91 (1984). "Judicial scrutiny on counsel's performance must be highly deferential." Id. at 689. The district court correctly decided that it would not "second guess [counsel's] judgment in deciding not to bring [the alleged errors] to the court's attention." District Court opinion at 7 and 8. There is no showing that counsel's performance fell below a reasonable standard or of any prejudice resulting from any alleged ineffective assistance of counsel.

Villa contends that the district court judge failed to comply with the Federal Rules of Criminal Procedure 32(a) (1) (A); that the district judge failed to inquire as to whether Villa and his counsel had read and discussed the presentence report; and that such an error prejudiced his sentence.

Rule 32(a) (1) (A) does not "require the court to address a defendant directly concerning his presentence report." United States v. Lewis, 880 F.2d 243, 245 (9th Cir. 1989). " [T]he requirements of Rule 32(a) (1) (A) are met when the sentencing judge reasonably relies on evidence indicating that a defendant has read the presentence report and discussed it with counsel." Id. at 246. There is no dispute that Villa read the report and discussed it with his attorney prior to the sentencing hearing. Villa's counsel referred to the presentence report at the hearing. A reasonable inference exists that she had read and discussed the report with Villa. Furthermore, the district court gave Villa the chance to address the court personally and raise any objections. Villa raised no objections concerning any alleged inaccuracies. Thus, the district court satisfied the requirements under Rule 32(a) (1) (A). The record shows that defendant was allowed to read the report, discuss it with counsel and had the opportunity personally to raise any objections to its content.

Villa challenges the accuracy of the presentence report. We do not review the accuracy of presentence reports in a Section 2255 motion where a defendant has failed "to avail himself of an opportunity to [attack] the report contemporaneously [i.e. at sentencing] or on direct appeal." United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981). Villa failed to raise this issue either at the sentencing hearing, on direct appeal, or in his Rule 35 motion to reduce his sentence. Thus, we will not review this challenge now.

AFFIRMED.