Unpublished Disposition, 855 F.2d 863 (9th Cir. 1988)

No. 87-1221.

United States Court of Appeals, Ninth Circuit.

Before JAMES R. BROWNING, and HUG, Circuit Judges, and JESSE W. CURTIS, Senior District Judge.^** 

MEMORANDUM^* 

Appellant mischaracterizes the record when he argues the court refused to conduct an evidentiary hearing. Defense counsel was repeatedly offered the opportunity to present testimony, but declined to do so. Moreover, Rule 32(c) (3) (A) expressly leaves the holding of an evidentiary hearing in the sentencing court's discretion. That discretion was not abused.

Appellant argues the trial judge erred by leaving two versions of disputed facts in the record rather than resolving the conflicts. Again, appellant mischaracterizes the record. The court acknowledged its duty under United States v. Petitto, 767 F.2d 607, 610 (9th Cir. 1985), to make a finding as to each disputed factual statement in the presentence report, and did so by expressly holding there was a "minimum factual basis" for each challenged statement. Id. at 611.¹  The court also entered a written order rejecting each challenge individually. This order together with the transcript of the Rule 32 hearing was sufficient compliance with Rule 32 and Petitto. See United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984) (while "court could and should have been more explicit," the record as a whole showed compliance with Rule 32).

Appellant's challenge to inclusion in the presentence report of information regarding the importation conspiracy, rests upon too narrow a view of the scope of information upon which sentencing courts may rely. We held in Walker v. Endell, No. 86-4230 (9th Cir. June 27, 1988), slip op. at 7609-11, that a sentencing court could rely on facts related to a murder charge of which defendant had been acquitted, stating " [s]entencing judges must be able to rely on as much information about a defendant as possible in order to fashion a punishment best tailored to the particular defendant." Id. at 7610.

There was sufficient evidence linking appellant to the importation conspiracy, including (1) evidence that appellant was one of Dawson's major cocaine "wholesalers," and knew the cocaine he sold was being imported; (2) Dawson's purchase of a seaplane with $7400.00 transferred to Dawson by appellant; (3) a proffer of testimony from co-defendants and informants that Dawson set up the plan to unload cocaine flown from Colombia onto a houseboat on Lake Mead; (4) a co-defendant's statement that Dawson told appellant to bring women to the houseboat to make it look like a party; (5) frequent phone contacts between Dawson and appellant shortly before the "party"; and (6) appellant's admissions through counsel that he was invited to the houseboat "party." This was sufficient basis for an inference that appellant was connected with the drug importation scheme. See United States v. Stewart, 799 F.2d 580, 582 (9th Cir. 1986); United States v. Hull, 792 F.2d 941, 943 (9th Cir. 1986) (per curiam).

Appellant's challenge to the Category 8 severity rating assigned by the probation officer falls with appellant's challenge to the finding that he was connected with the importation scheme, the finding upon which the severity rating was based.

AFFIRMED.