Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Jack Maxwell OLIPHANT, Defendant-Appellant.

No. 87-1189.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 26, 1989.Decided Jan. 30, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Jack Maxwell Oliphant appeals the district court's four year sentence, following his guilty plea for conspiracy to defraud the United States, in violation of 18 U.S.C. § 371. Oliphant contends that the district court violated Fed. R. Crim. P. 32(c) (3) (D) by failing to make explicit findings of fact regarding controverted information contained in his presentence report. This contention incorrectly assumes that the presentence report was utilized for sentencing purposes and therefore, we affirm.

After the United States Probation Office prepared Oliphant's presentence report, but prior to sentencing, Oliphant claimed that nine portions of the report contained factual inaccuracies. The government filed a memorandum refuting each of these claims.

At sentencing, the district court acknowledged that Oliphant's counsel had objected to the presentence report and asked Oliphant if there were any additional objections. After Oliphant stated there were none, the district court stated that the factual basis of Oliphant's guilty plea and the findings of fact from Oliphant's detention hearing formed the basis of Oliphant's sentence. However, because the district court recognized that the presentence report may have value beyond sentencing it addressed each of Oliphant's objections separately.1  After amending the presentence report to reflect Oliphant's objections, the district court again stated that the factual basis in the plea agreement formed the basis for Oliphant's sentence.

Fed. R. Crim. P. 32(c) (3) (D) mandates that, when a defendant challenges the factual accuracy of presentence material, the sentencing judge must either state for the record that the controverted matters will not be considered for sentencing purposes, or make written findings of fact concerning the contested matters prior to sentencing. Fed. R. Crim. P. 32(c) (3) (D). A statement demonstrating the district court's nonreliance on the controverted information precludes the requirement that written findings of fact be made regarding the contested material. United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir.), cert. denied, 474 U.S. 1068 (1986).

Here, the district court clearly stated, both at the outset of the sentencing hearing and after addressing Oliphant's objections to the presentence report, that the factual basis of Oliphant's guilty plea formed the basis for his sentence. These statements establish that the district court did not rely on the controverted matters contained in the presentence report. See Gonzales, 765 F.2d at 1397.

Therefore, the district court was under no duty to make findings of fact regarding the contested matters and thus, did not err in sentencing Oliphant without making those findings. See Fed. R. Crim. P. 32(c) (3) (D); Gonzales, 765 F.2d at 1397.

AFFIRMED.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Oliphant's request for oral argument is denied

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

In essence, the district court retitled the presentence report to state, "Prosecution Version and Contentions by the Defendant" and included Oliphant's contentions or denials to the specific objectionable paragraphs in the presentence report