Unpublished Disposition, 855 F.2d 863 (9th Cir. 1987)

MEMORANDUM^** 

Montano Dimaranan appeals the district court's denial of his post-sentencing motions: (1) his motion made under Federal Rule of Criminal Procedure 32 to correct his presentence investigation report; and (2) his motion made under Federal Rule of Criminal Procedure 35 to correct his sentence. We affirm the district court.

BACKGROUND

On November 20, 1985, Montano Dimaranan was indicted on one count of conspiracy, in violation of 18 U.S.C. § 371; two counts of possession of stolen mail, in violation of 18 U.S.C. § 1708; two counts of possession of stolen treasury checks, in violation of 18 U.S.C. §§ 641, 1708; and one count of interstate transportation of stolen property, in violation of 18 U.S.C. § 2314. On February 12, 1986, Dimaranan pleaded guilty to two counts of possession of stolen mail.

At the sentencing hearing, the district court judge asked both Dimaranan and his counsel if there was any reason why the sentence should not be imposed. Dimaranan apologized to the court and asked for compassion and leniency. Dimaranan's counsel asked that the sentence be limited to seven years because Dimaranan was a first time offender and had been a productive member of society. Before sentencing, the judge stated that he had read the presentence report. The judge asked no additional questions, and the defendant and his attorney made no mention of alleged inaccuracies in the presentence report nor any other statements. Dimaranan was sentenced to five years in prison on one count and four years on the other, the terms to be served consecutively; the judge also imposed a $2000 fine for each count.

On August 20, 1986, Dimaranan filed a pro se motion under Federal Rule of Criminal Procedure 32(c) (3) (D) to correct alleged inaccuracies in the presentence report. On October 6, 1986, he filed a pro se motion under Federal Rule of Criminal Procedure 35(a) to correct his sentence, alleging that the imposition of consecutive sentences for the same offense violated his double jeopardy rights. On April 30, 1987, the district court denied both motions. Dimaranan appeals.

ANALYSIS

* Presentence Report

Dimaranan contends the district court erred in denying his post-sentence motion to correct alleged inaccuracies in the presentence report. The district court denied the motion as untimely because Dimaranan made no claim of inaccuracy or request for correction of the report at sentencing. The district court's holding is correct; Dimaranan's contention lacks merit.

This court recently stated that Federal Rule of Criminal Procedure 32 "allows the defendant to challenge factual inaccuracies during imposition of sentence, not later." United States v. Freeny, 841 F.2d 1000, 1002 (9th Cir. 1988) (per curiam) (Holding that the district court has no jurisdiction under Rule 32 to entertain a challenge to alleged inaccuracies in a post-sentence report by a motion made after imposition of sentence). This is consistent with the rulings of other courts. E.g., United States v. Edmondson, 818 F.2d 768, 769 (11th Cir. 1987); United States v. Leath, 711 F.2d 119, 120 (8th Cir. 1983); United States v. Williams, 618 F. Supp. 1419, 1420-21 (E.D. Va. 1985), aff'd, 785 F.2d 306 (4th Cir. 1986); United States v. Burkhead, 567 F. Supp. 1425, 1427-28 (W.D. Mo. 1983). See also United States v. Leonard, 589 F.2d 470, 471-72 (9th Cir. 1979) (In affirming a district court's denial of a motion to vacate the defendant's sentence made under 28 U.S.C. § 2255, this court found the defendant had ample opportunity to review his presentence report as required by Rule 32(c) (3) (A), and thus was not denied due process in his sentencing).

The requirement that the defendant challenge inaccuracies in the presentence report prior to imposition of the sentence is also consistent with the language of Rule 32. Rule 32(c) (3) (A) states, in part, that " [a]t a reasonable time before imposing sentence the court shall permit the defendant and the defendant's counsel to read the report of the presentence investigation exclusive of any recommendation as to sentence ... [and] [t]he court shall afford the defendant and the defendant's counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it." Rule 32(c) (3) (D) further states that " [i]f the comments of the defendant and the defendant's counsel ... allege any factual inaccuracy in the pre-sentence investigation report ... the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account at sentencing."

If the defendant does not object to alleged factual inaccuracies in the report at sentencing, the court cannot comply with the requirements of Rule 32(c) (3) (D) by making specific findings on the controverted matter or by determining that the matter will not be taken into account in sentencing. Requesting the trial court to resolve an alleged factual dispute concerning the presentence report months after sentencing runs the risk that the trial judge's memory as to the facts and issues will have faded. Williams, 618 F. Supp. at 1420. Thus, a challenge to the accuracy of a presentence report made under Rule 32 must be raised at sentencing.

Dimaranan does not dispute that he had an opportunity to review the presentence report before sentencing. However, he contends that he was given only five minutes to read it and that this was not "ample opportunity for someone who is not fluent in the English language."

18 U.S.C. § 3552(d) states the court should assure that the presentence report is disclosed to the defendant and his counsel at least ten days prior to the sentencing hearing unless the minimum period is waived by the defendant. Although the district court noted, in its order denying Dimaranan's Rule 32 motion, that Dimaranan had the opportunity to read and discuss the report, there is no evidence in the record to substantiate or refute Dimaranan's claim that he had only five minutes to review the report.

However, at the sentencing hearing, neither Dimaranan nor his counsel raised the issue of inadequate time. For the same reasons that allegations of inaccuracies in the presentence report should be raised at sentencing, complaints of inadequate time to review the report also should be. See Edmondson, 818 F.2d at 769. Dimaranan and his counsel had adequate opportunity to raise the issue of inadequate time to review the report before sentence was imposed. Because Dimaranan was silent at the sentencing hearing, he waived his right to later raise the issue of inadequate time to review the presentence report.

The district court properly denied as untimely Dimaranan's Rule 32 challenge to his presentence report.

II

Double Jeopardy

Dimaranan contends that the district court's imposition of two separate consecutive sentences on two counts of possessing stolen mail was improper because he is being punished twice for the same offense in violation of the Double Jeopardy Clause. Thus, he moves to correct his sentence under Federal Rule of Criminal Procedure 35(a).

The Fifth Amendment's Double Jeopardy Clause protects a defendant in a criminal prosecution from receiving multiple punishments for the same offense. U.S. Const.Amend. 5; Jeffers v. United States, 432 U.S. 137, 150, reh'g denied, 434 U.S. 880 (1977). However, consecutive sentences can be imposed for the separate commission of the same crime if each charged offense requires proof of a fact that the other does not. See Blockburger v. United States, 284 U.S. 299, 304 (1932); United States v. Van Cleave, 599 F.2d 954, 956 (10th Cir. 1979).

Here, Dimaranan pleaded guilty to two distinct acts of possessing stolen mail: one count charged an incident of possession in December 1982; the second count charged an incident of possession in January and February 1985. These acts were separate commissions of the same crime, possession of stolen mail, in violation of 18 U.S.C. § 1708. Thus, the district court did not violate the Double Jeopardy Clause when it imposed consecutive sentences for the two distinct counts of possessing stolen mail.

CONCLUSION

The district court's order is AFFIRMED.