Unpublished Disposition, 852 F.2d 573 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 573 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Dino RETSINAS, Defendant-Appellant.

No. 87-1223.

United States Court of Appeals, Ninth Circuit.

Submitted June 17, 1988.Decided July 1, 1988.* 

Before CHOY, TANG, and O'SCANNLAIN, Circuit Judges.


MEMORANDUM** 

Dino Retsinas appeals his sentence following a guilty plea on one count of being a felon receiving a firearm, in violation of 18 U.S.C. §§ 922(b) (1), 924(a). Retsinas contends that the district court relied on unproven and unreliable allegations in the indictment and presentence report in determining his sentence.

Retsinas was initially sentenced to five years in the custody of the Attorney General, and he was ordered to pay restitution and a special assessment. Retsinas appealed his conviction and sentence, and this court affirmed the conviction but remanded the case for resentencing. See United States v. Retsinas, No. 86-1308 slip op. (9th Cir. June 1, 1987) (CR 27).1 

Prior to resentencing, Retsinas filed a notice of his intent to present mitigating information, and to contradict assertions made in the presentence report. At the resentencing proceeding, Retsinas's counsel stated that the presentence report implied that Retsinas consciously broke the law when he purchased a firearm. The presentence report, however, stated that Retsinas gave false information receiving the firearms by answering "no" to the question on the Firearms Transaction Record as to whether he was convicted for an offense punishable by a term of imprisonment exceeding one year (see, e.g., Presentence Report at A). The district court stated that it believed the presentence report was accurate concerning Retsinas's possession of firearms.

Retsinas was sentenced to four years in the custody of the Attorney General, and he was ordered to pay a special assessment. Retsinas timely appeals.

The challenged information used in sentencing Retsinas, regarding the dismissed counts in the indictment and the allegation in the presentence report that Retsinas lied about his former felony conviction when he acquired a firearm, was not lacking factual support. The presentence report contains a "Firearms Transaction Record," a form which Retsinas completed to acquire the firearm referred to in Counts 1 and 2 of the indictment (see Presentence Report at Tab B). Retsinas answered "no" to question 8b, which asks whether Retsinas had ever been convicted of a felony. Because there is no dispute that Retsinas had previously been convicted of a felony,2  there is adequate support in the presentence report that Retsinas lied in acquiring the firearm.3 

Retsinas offers no evidence that indicates that the challenged information was false or unreliable. Because the information used in sentencing Retsinas was not materially untrue or unreliable, the district court did not err in relying on the allegation that Retsinas lied in acquiring firearms.

The judgment is AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir. 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 9th Cir.R. 36-3

 1

In an unpublished memorandum disposition, a panel of this court affirmed the district court's finding that the government did not breach its plea agreement, and therefore Retsinas was not permitted to withdraw his guilty plea (CR 27 at 1). However, the panel found that the district court committed two procedural errors at sentencing, and therefore remanded the case for resentencing (id. at 2-3)

 2

By pleading guilty, Retsinas admitted the material facts alleged in the indictment. See United States v. Matthews, 833 F.2d 161, 163 (9th Cir. 1987). Retsinas pleaded guilty to Count 1 of the indictment, which states that Retsinas was previously convicted of a crime punishable by imprisonment for a term exceeding one year (CR 1). Thus, it is not disputed that Retsinas was previously convicted of a crime punishable by imprisonment for more than a year

 3

In addition, the government's list of witnesses and exhibits before the grand jury also indicates that the government would present at trial the originals of the other two firearms transaction records in which Retsinas falsely stated he was not a convicted felon (see Presentence Report at Tab B, C)