Unpublished Disposition, 855 F.2d 863 (9th Cir. 1987)

No. 87-3023.

United States Court of Appeals, Ninth Circuit.

Before WRIGHT and CANBY, Circuit Judges, and WILLIAM H. ORRICK,^**  Senior District Judge.

MEMORANDUM^*** 

Richard and Carol Calabrese appeal pro se from the denial of their motions for modification of sentence pursuant to 28 U.S.C. § 2255. They were convicted after a jury trial of conspiring to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841 and 846. Richard Calabrese was sentenced to a term of fifteen years; his wife Carol was sentenced to a term of three years. The Calabreses now challenge their sentencing, claiming that the district court violated Federal Rule of Criminal Procedure 32(c) (3) (D) (hereinafter cited as "Rule 32").¹  Specifically, they argue that the district court: (1) relied on erroneous information in the presentence report; (2) failed to make findings with respect to this controverted information; and (3) failed to hold an evidentiary hearing. They also claim ineffective assistance of counsel at the sentencing hearing. In addition, Richard Calabrese attacks his sentence on disparity grounds, claiming that there is no factual basis to support the disparity between his fifteen-year sentence and his wife's three-year sentence.

The district court denied the Calabreses' Sec. 2255 motion. We affirm.

* Richard Calabrese, his wife Carol Calabrese, and her brother Terry Alan Logan were charged in a two-count superseding indictment. Count One charged the defendants with conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 846 and 841. Count Two charged them with manufacturing and distributing methamphetamine in violation of 21 U.S.C. § 841.

After trial by jury, a verdict was returned finding all three defendants guilty of conspiracy. Logan was also found guilty of the substantive count of manufacturing and distributing, but the Calabreses were acquitted on this count.

The probation officers prepared a ten-page presentence report on Richard Calabrese and a seven-page presentence report on Carole Calabrese. The court ordered them to make the presentence reports available for inspection by the defendants' attorneys no later than January 3, 1986.

On January 3, 1986, Richard Calabrese's attorneys filed an eighteen-page presentence report and sentencing recommendation prepared by Stephen Blake, a private consultant hired by the defense to provide the court with "more complete information" for sentencing. In addition, Richard Calabrese's lawyers submitted nine letters written to the court in his support, including one letter written by Richard Calabrese himself. On that same day, Carol Calabrese's attorneys filed an eighteen-page presentence report and sentencing recommendation on her behalf, also prepared by Mr. Blake. Nineteen letters written in support of Carol Calabrese were also submitted to the court, including a letter from Carol Calabrese herself.

Sentencing was initially set for January 7, 1986, but was continued to allow time for an evidentiary hearing regarding sentence enhancement for defendants Logan and Calabrese. On January 9, 1986, the sentence enhancement hearing commenced, based on the government's motion to designate Logan and Richard Calabrese as dangerous special drug offenders pursuant to 21 U.S.C. § 849. At this hearing defendants claimed that they had not had an adequate opportunity to review the presentence report. The court found that defendants had been given ample opportunity to inspect the presentence report prior to the hearing, but continued the hearing until the next day.

On the following day the sentence enhancement hearing for Logan and Richard Calabrese was held. At that time defendants' attorneys raised several objections to the presentence reports. The judge ordered the lawyers to file written objections to the presentence report, so that he could review each of these objections in detail before the sentencing hearing.

Richard Calabrese's attorneys did file written objections to his presentence report. One of Carol Calabrese's attorneys wrote a letter to her probation officer objecting to various portions of her presentence report. The court received a copy of this letter.

The sentencing hearing was held. The court began the hearing by reviewing every written objection made by defendants to their presentence reports. After identifying each objection for the record, the court stated with particularity how it was going to rule on that objection.

In ruling on the various objections, the court stated either that it was not going to rely on the contested information as a basis for sentence, or that it would consider the information in the presentence report only to the extent it was consistent with the evidence admitted at trial.

The court then specifically instructed the court reporter to make a copy of the transcript of the hearing to attach to the presentence reports.

Before pronouncing sentence, the court stated that it had examined and considered the presentence reports prepared by defendants' consultant, Mr. Blake, as well as the letters of recommendation. The court also praised the work done by defendants' attorneys, remarking that defendants had been afforded a textbook defense.

The court held that it would not enhance the sentences of Logan and Richard Calabrese pursuant to 21 U.S.C. § 849. The court then sentenced Terry Logan to a term of fifteen years on the conspiracy charge and a term of fifteen years on the substantive charge, to run consecutively. The court sentenced Richard Calabrese to a term of fifteen years and sentenced Carol Calabrese to a term of three years on the same conspiracy charge.

Subsequently, Richard and Carol Calabrese filed motions for findings of fact pursuant to Rule 32 and for modification of sentence pursuant to 28 U.S.C. § 2255. On February 17, 1987, the court issued a Memorandum and Order denying their motions, in which it reviewed all of the Calabreses' objections, and determined that they had already been raised at the time of sentencing. The court found that it had complied with Rule 32 at the time of sentencing. As a result, the court held that the Calabreses were not entitled to any relief under 28 U.S.C. § 2255.

II

The denial of a defendant's Sec. 2255 petition by a district court is reviewed de novo. United States v. Quan, 789 F.2d 711 (9th Cir.), cert. dismissed, 107 S. Ct. 16 (1986); Jones v. United States, 783 F.2d 1477, 1479 (9th Cir. 1986). Any factual findings made by the district court in considering a Sec. 2255 motion are reviewed under the clearly erroneous standard. United States v. Arellanes, 767 F.2d 1353, 1357 (9th Cir. 1985); Gano v. United States, 705 F.2d 1136, 1137 (9th Cir. 1983).

When a Sec. 2255 motion is made challenging the sentencing court's use of information contained in a presentence report, the "motion must be denied unless it affirmatively appears in the record that the court based its sentence on improper information." Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978) (en banc) . See also United States v. Perri, 513 F.2d 572, 574 (9th Cir. 1975); Santoro v. United States, 462 F.2d 612, 613 (9th Cir. 1972).

A district court's determination that counsel rendered effective assistance is reviewed de novo. Jones, 783 F.2d at 1479; Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir. 1985).

Sentencing is left to the sound discretion of the district court, and sentencing that is within statutory limits is generally not reviewable unless constitutional concerns exist. United States v. Tucker, 404 U.S. 443, 447 (1972); United States v. Salas, 824 F.2d 751 (9th Cir.), cert. denied, 108 S. Ct. 465 (1987); United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986). But see Jones, 783 F.2d at 1479 (sentencing within statutory guidelines is within discretion of sentencing court, and is reviewable for abuse of discretion).

III

The Calabreses contend that the district court based its sentence on inaccurate and unreliable information in the presentence reports. They claim that this violates their due process rights, as well as the dictates of Rule 32.

The Calabreses are correct in their assertion that a sentence based on materially false information violates due process. See Townsend v. Burke, 334 U.S. 736, 741 (1948); see also United States v. Weston, 448 F.2d 626 (9th Cir. 1971), cert. denied, 404 U.S. 1061 (1972) (sentence vacated where presentence report was not supported by underlying confidential report). They are also correct in asserting that the purpose of Rule 32 is to ensure that the court does not rely on materially false information at sentencing.

However, when a Sec. 2255 petition alleges reliance on materially false sentencing information, the sentence will be vacated on appeal only if the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence. Farrow, 580 F.2d at 1359; Jones, 783 F.2d at 1480; United States v. Edwards, 800 F.2d 878, 880 (9th Cir. 1986); United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984). Both of these prongs must be satisfied before a sentence can be vacated or modified. Id.

Given the record in this case, the Calabreses simply did not meet this test. They did not prove either that the presentence reports contained materially false or unreliable information, or that the district court relied on this information as a basis for imposing sentence. The record shows that the court repeatedly asked defendants to point out all objections to information in the presentence report. The court then carefully considered each objection to determine whether the disputed information was in fact accurate and reliable in light of the testimony the court heard at trial. Evidence that is supported by the trial record cannot be deemed false or unreliable. Jones, 783 F.2d at 1481. An appellate court "shall not interfere with the trial judge's broad discretion to decide not only the relevance but the reliability of sentencing information." Id. Finally, the statement by the court that it was not going to rely on certain controverted information in the presentence report must be taken at face value. United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir. 1985), cert. denied, 474 U.S. 1068 (1986). An appellate court should affirm a sentence when the trial court disavows reliance on the challenged sentencing information. Id. at 1395; Jones, 783 F.2d at 1481; Ibarra, 737 F.2d at 827; United States v. Haili, 443 F.2d 1295, 1301 (9th Cir. 1971).

In sum, the Calabreses did not show either that the presentence report contained false or unreliable information, or that the court relied on this information when imposing sentence. As a result, they did not prevail on this challenge to their sentencing.

IV

The Calabreses argue that the court failed to make findings as to controverted information in the presentence report and failed to prepare a written record as required by Rule 32. The Rule requires:

[T]he 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 in sentencing. A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons or the Parole Commission.

Fed. R. Crim. P. 32(c) (3) (D). Strict compliance with these provisions is required. See Edwards, 800 F.2d 881; United States v. Petitto, 767 F.2d 607, 610 (9th Cir. 1985); United States v. Travis, 735 F.2d 1129, 1132-33 (9th Cir. 1984). This rule is designed to prevent prison or parole officials from relying on incorrect information in future correctional or parole decisions. Petitto, 767 F.2d at 610.

The district court certainly understood its obligations under the Rule. See Transcript of Jan. 16, 1986, at 46, 57. It addressed each written and oral objection. Although the rulings as to controverted information are not the model of clarity, at the sentencing hearing the Calabreses did not express dissatisfaction or request clarification. They may not now complain of the manner in which the court carried out its duties.

It is clearly established that the requirement for written findings is fulfilled if the trial court makes oral rulings and then orders that a copy of the transcript be attached to the presentence report. Salas, 824 F.2d at 753; Petitto, 767 F.2d at 610; Travis, 735 F.2d at 1133. In this case the court did order that a copy of the sentencing hearing transcript be attached to the presentence reports. Its order was carried out. It complied fully with the rule.² 

V

The Calabreses argue that the court erred by not holding an evidentiary hearing. They cite Petitto for the proposition that an evidentiary hearing is required whenever defendants challenge information contained in a presentence report.

This contention is wholly without merit. In Petitto, the court explicitly stated that " [d]ue process does not require an evidentiary hearing ... on all challenged information in the presentence report." 767 F.2d at 611. See also Farrow, 580 F.2d at 1359. The Petitto court also made it clear that defendants could be allowed to rebut information in a presentence report through affidavits or other documents as well as by an evidentiary hearing. Id. Finally, the Petitto court stated that if a court does not rely on disputed facts in imposing sentence, no hearing is necessary. Id. Accord, Salas, 824 F.2d at 753 (an evidentiary hearing is not necessary if the district court states that it is not relying on contested matters).

The record in this case clearly demonstrates that the court did not rely on any unreliable information in the presentence reports. The court stated that it would not consider any statements in the presentence reports that were not amply supported by the trial record. Because the court relied only on information supported by trial testimony, an evidentiary hearing was not required.

VI

The Calabreses claim that they were denied effective assistance of counsel at the sentencing hearing because their counsel failed to make necessary objections to the presentence reports. This argument is also without merit.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must point to acts or omissions by his attorney which fall "outside the wide range of professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690 (1984). A defendant must then show that the errors made by counsel actually caused prejudice to the defendant. Id. at 692.

A defendant is not prejudiced by an attorney's failure to challenge inaccuracies in a presentence report, if the court imposes a sentence warranted by the evidence adduced at trial. Jones, 783 F.2d at 1482. Similarly, a defendant is not prejudiced if the sentencing court receives a report of the defendant's versions of the facts. Farrow, 580 F.2d at 1361.

Under these standards, the Calabreses did not prevail on their claim of ineffective assistance of counsel. First, the record proves that the Calabreses' attorneys did not make any errors. As the court found when it denied the Sec. 2255 motion, all the objections the Calabreses are now raising were originally raised by their attorneys at the sentencing hearing. Moreover, the court remarked at the sentencing hearing that defendants' attorneys had done an excellent job, and had provided a textbook defense. Second, even if defendants were to demonstrate some sort of error, they did not prove that they were prejudiced by it. The court stated it was not relying on any information in the presentence report not borne out by the trial evidence, and the court also received defendants' version of the facts in the presentence reports prepared by the private consultant. See Jones, 783 F.2d at 1482; Farrow, 580 F.2d at 1361.

VII

Richard Calabrese claims that there is no factual basis to support the disparity between his fifteen-year sentence and his wife's three-year sentence. This challenge to his sentence is unavailing.

We note at the outset that sentencing is left to the sound discretion of the district court, and that sentencing within statutory limits is generally not reviewable unless constitutional concerns exist. Messer, 785 F.2d at 834; Tucker, 404 U.S. at 447; Salas, 824 F.2d at 752. Even if disparity of sentence were a cognizable claim under Sec. 2255, which we do not decide, there was in any event no disparity in this case. Richard Calabrese's sentence does not differ from the fifteen-year sentence imposed for the same charge on co-conspirator Logan. Testimony at the trial revealed that the involvement of Richard Calabrese and Logan in the criminal activity was more substantial than the involvement of Carol Calabrese. The court relied on this testimony when imposing sentence. Thus, Richard Calabrese's sentence should not be modified merely because it is longer than the sentence imposed on Carol Calabrese.

AFFIRMED.