Unpublished Disposition, 865 F.2d 265 (9th Cir. 1985)

MEMORANDUM^* 

Brown appeals the district court's denial of his motion for resentencing under Rule 35 of the Federal Rules of Criminal Procedure. Brown contends that he is entitled to resentencing because the sentencing judge relied on three subsequently expunged arrests which were included in his presentence report. We affirm.

FACTS

Appellant was tried and convicted with five other defendants on one count of violating 21 U.S.C. § 846 (conspiracy to distribute heroin). Evidence at trial showed that appellant was a principal in the Felix Mitchell heroin "mob" from 1976 to 1980. In addition to his role in the heroin ring, evidence showed that appellant was involved in the murders of three members of the rival Walker drug ring in August 1980. Appellant left the Mitchell ring in 1980 but, according to testimony at trial, continued to sell heroin through 1981 in San Francisco. Beginning in 1982, appellant served a three-year prison term on a heroin trafficking conviction.

A sentencing hearing was held on June 4, 1985. Although appellant challenged the factual accuracy of a September 14, 1981 arrest, he did not challenge the accuracy of the three arrests, later expunged, that are the basis of his present claim. The three arrests include: (1) a 1977 misdemeanor possession of a firearm charge, (2) a 1977 misdemeanor resisting arrest charge and (3) a 1979 felony assault with a dangerous weapon charge. The presentence report accurately stated that these three arrests all resulted in dismissal without prosecution due to lack of evidence.

Judge Patel sentenced appellant to twenty years, including five years as a dangerous special drug offender (DSDO) pursuant to 21 U.S.C. § 849. In imposing sentence, Judge Patel found that appellant was a principal in a "wide-ranging" heroin ring, that appellant participated in the Walker homicides, and that appellant had a record of offenses since age 16, including burglary, armed robbery, drug possession and drug dealing. Judge Patel did not refer to the expunged arrests at issue here. Nor did the government refer to them in its sentencing memorandum. Judge Patel found that "each of the defendants was prepared to act in total disregard for the lives and safety of others."

On appeal, this court affirmed appellant's conviction and sentence. United States v. Patterson, 819 F.2d 1495 (9th Cir. 1987).

In his Rule 35 motion before Judge Henderson, appellant requested modification of his sentence on three grounds. Only the claim based upon the expunged arrests is at issue in this appeal. Judge Henderson ordered appellant's presentence report amended to reflect the expungements so that appellant would receive a fair hearing at future appearances before the Parole Commission. However, Judge Henderson also ruled that the expungements did not require resentencing.

ANALYSIS

Whether a sentence violates due process and is therefore illegal is a question of law reviewed de novo. United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986), cert. denied, 479 U.S. 1094 (1987).

"When a trial judge relies on materially false or unreliable information in sentencing a defendant, the defendant's due process rights are violated." United States v. Ruster, 712 F.2d 409, 412 (9th Cir. 1983). A defendant who challenges information used in sentencing must show that the information is (1) false or unreliable and (2) was demonstrably made the basis for the sentence. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986).

At the outset, we reject the implication in appellant's brief that Federal Rule of Criminal Procedure 32(c) (3) (D) applies here, and that appellant therefore need not make the two-pronged showing required by Messer. Rule 32(c) (3) (D) requires that when a defendant challenges information in a presentence report, the district court must make findings concerning the challenged information or state that no such findings will be necessary because the court will not rely on the disputed information in sentencing. If the district judge fails to address the allegations of inaccuracy as required by the rule, resentencing is mandatory. United States v. Petitto, 767 F.2d 607, 610 (9th Cir. 1985).

However, Rule 32(c) (3) (D) preempts the falsity/reliance inquiry only when a defendant makes allegations of factual inaccuracy in the presentence report at sentencing. Where, as here, a defendant makes no such allegations before the sentencing judge, the rule does not apply. Therefore, to prevail, appellant must show both that the challenged information was false or unreliable and that it was relied upon as required by Messer. Because we find that appellant has clearly failed to establish that the sentencing judge relied on the disputed arrests, we need not decide the more difficult question whether the presentence report's references to the arrests were false or unreliable in light of the later expungements.

Appellant's argument that the sentencing court relied on the arrests at issue boils down to the bare assertion that these arrests were included in the presentence report. There is no other evidence of specific reliance in the record. The sentencing judge, Judge Patel, found that appellant was a "lieutenant" in a major heroin ring for four to five years and that he was involved at least to some extent in the murders of three members of a rival drug ring. She found that appellant and the other defendants had shown lack of regard for human life and for the devastation they had wrought in their community. Judge Patel made explicit reference to a number of appellant's convictions. She made no direct reference to the unprosecuted arrests, nor were they mentioned in the government's sentencing memorandum. Appellant has failed to demonstrate that the sentencing court relied at all on the challenged arrests and therefore is not entitled to resentencing.

AFFIRMED.