Unpublished Disposition, 931 F.2d 898 (9th Cir. 1990)

No. 90-30264.

United States Court of Appeals, Ninth Circuit.

Before POOLE, D.W. NELSON and NOONAN, Circuit Judges

MEMORANDUM^** 

Eduardo Espinosa Elenes appeals his sentence following a guilty plea to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. Elenes contends that the district court erred by failing to resolve disputed factual matters or state on the record that those factual matters would not be considered in sentencing, in violation of Fed. R. Crim. P. 32(c) (3) (D).¹  We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

" [W]hen the defendant challenges the factual accuracy of any matters contained in the presentence report, the district court must, at the time of sentencing, make the findings or determinations required by Rule 32." United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc) (sentence vacated for failure to comply with Rule 32).²  Failure to comply with the requirements of Rule 32 requires vacation of the sentence and resentencing. Id. "If the district court states that the controverted matters will not be considered in imposing sentence, the sentencing record must unambiguously reflect that the district court placed no reliance on the controverted matters. If the record is ambiguous in this regard, the sentence must be vacated and remanded for resentencing." Id., at 1516 n. 2; see also United States v. Baron, 860 F.2d 911, 919-20 (9th Cir. 1988) (remand for resentencing required when court stated it would not rely on information and later created ambiguity about whether it did rely on that information at sentencing), cert. denied, 490 U.S. 1040 (1989).

Elenes contends that the district court failed to make the proper finding or determination with regard to whether Elenes (1) was the leader of a criminal organization involved in narcotics trafficking, and (2) used a weapon during the commission of the offense. Additionally, Elenes argues generally that the district court relied on controverted factual allegations at sentencing without either resolving the factual disputes or determining that the facts disputed would not inform the district court's sentencing.

Elenes originally received a 20 year sentence, the upper end of his plea bargain range. On remand, the district court specifically addressed each of Elenes' objections to the presentence report (PSR). At resentencing, the district court stated:

Although there was, in my opinion, adequate proof for sentencing purposes to consider both defendants' roles in the offense as a leader and the use of weapons, I did not and do not take those factors into consideration in the sentence. I did not craft the sentence the last time considering either of those events because, one, pursuant to an agreement between the parties under a rule which limits what I could do without allowing the withdrawal of the guilty plea. In any event, that was preguidelines and the guidelines do not apply. It is not necessary to make such a finding because neither the alleged role or use of weapons influenced my sentence nor caused me to enhance it at all (ER 8, RT 7/2/90 at 3).

The district court then went on to address Elenes' objections to the PSR, and made the proper determinations with regard to each one. Elenes argues that the fact that he received the same 20 year sentence implies that the district court relied on the unresolved controverted facts from the first hearing to arrive at his sentence. It is clear from the sentencing transcript that the district court did not rely on these controverted facts, or any other controverted facts, in imposing sentence.

Therefore, the district court made the proper findings and determinations required by Rule 32(c) (3) (D) as to each of the controverted facts in the PSR. See Fed. R. Crim. P. 32(c) (3) (D); cf. Fernandez-Angulo, 897 F.2d at 1516.

AFFIRMED.