Unpublished Disposition, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^** 

Jerry Lowe appeals his ten and one-half year sentence for bank robbery and aiding and abetting, in violation of 18 U.S.C. §§ 2113(a) and 2. Lowe contends that during the sentencing proceeding, the district court: (1) gave inadequate consideration to his mitigating evidence presented pursuant to Fed. R. Crim. P. 32(a) (1) (C); (2) failed to make a factual finding required by Rule 32(c) (3) (D), and to require the government to bear the burden of proof; and (3) failed to give reasons for imposing a greater sentence on him than on his codefendant. We affirm the sentence but remand to allow the district court to comply with Rule 32 by attaching the transcript of the sentencing hearing to the presentence report. See United States v. Fernandez-Angulo, No. 87-3068, slip op. at 15246 (9th Cir. Dec. 15, 1988).

Although the district court must consider evidence relevant to mitigation in imposing a criminal sentence, it has discretion to evaluate the reliability of such evidence and to weigh it accordingly. Jones v. United States, 783 F.2d 1477, 1481 (9th Cir. 1986). A full and thorough sentencing hearing was held. Defendant submitted the report of Dr. Elias, a psychologist. The report was received and considered and Dr. Elias testified at the hearing. In evaluating that report and testimony in light of the other evidence before the court, the district judge simply did not agree with Dr. Elias' opinion as to the defendant's future prospects. The judge's determination was the ultimate legal conclusion of the appropriate sentence to be imposed in light of the defendant's criminal record and conflicting opinions as to the extent of his rehabilitation. It was an appropriate exercise of discretion after considering and evaluating the opinions and the prior record.

However, defendant's claim that the district court failed to comply with Fed. R. Crim. P. 32(c) (3) (D) has merit. The presentence report stated "Dr. Elias was not in possession of all the material surrounding Mr. Lowe's family, social, and criminal history." Defendant challenged this statement and the district court found it to be accurate. However, the district court failed to order the transcript containing that finding be attached to the presentence report as the Rule requires. See United States v. Petitto, 767 F.2d 607, 610 (9th Cir. 1985). As we observed in that case, exacting compliance with the Rule is required to assure the accuracy of the information upon which parole and corrections officials must rely. Id.

The disparate sentencing argument was raised for the first time in the reply brief and normally would not be considered. However, the argument is meritless. The district court is not required to give reasons for disparate sentencing of codefendants where there is no claimed infringement of a defendant's right to stand trial. United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986).

REMANDED.