Unpublished Disposition, 878 F.2d 387 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 387 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Raymond WATSON and Michael Beketic, Defendant-Appellant.

Nos. 88-3053, 88-3054.

United States Court of Appeals, Ninth Circuit.

Submitted*  Feb. 23, 1989.Decided June 22, 1989.

Before FERGUSON, CYNTHIA HOLCOMB HALL and KOZINSKI, Circuit Judges.


MEMORANDUM** 

Raymond Watson and Michael Beketic pled guilty to charges of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a) (1) and 846 and were sentenced to a term of imprisonment of 12 years. They now appeal, contending that the district court relied on inaccurate information and groundless inferences contained in their presentence investigation reports in determining their sentences. They also claim that the district court's failure to strike the alleged inaccurate and unreliable material from the presentence investigation report violates their due process rights as the parole commission will be entitled to rely on the inaccurate information in determining parole eligibility. Finally, Beketic contends that his sentence is disproportionate to the gravity of his offense and thus violates the Eighth Amendment. We affirm.

On May 19, 1987, Watson and Beketic were indicted for, among other offenses: (1) conspiracy to manufacture and distribute methamphetamine; (2) manufacture of methamphetamine; and (3) possession of methamphetamine. Pursuant to a plea agreement, both pled guilty to conspiracy to manufacture and distribute methamphetamine and the Government dismissed the remaining charges.

The United States Probation Office prepared presentence investigation reports [hereinafter "PSIs"] to which both Watson and Beketic objected on the ground that the PSIs' statement regarding the amount of methamphetamine that could have been produced by the chemicals that apparently had been expended by the defendants was pure speculation and any such references were unduly prejudicial.1  Beketic further objected to the contents of his PSI on the ground that it contained inaccurate information regarding (1) how he raised his child and (2) his possession of machine guns and hand grenades at the time of arrest. Finally, he challenged the PSI's classification of him as "dangerous."

A sentencing hearing was held on January 11, 1988 and March 2, 1988, during which the district court considered the defendants' objections to the PSIs. The district court entered no formal findings as to the accuracy of the challenged statements, but rather stated on the record that when determining the sentence it would not consider any of the disputed material regarding the amount of methamphetamine that was likely produced, Beketic's daughter, or his alleged possession of machine guns and hand grenades. The district court also found that in light of the offenses, both defendants properly are regarded as dangerous to the community. Further, the district court ordered that the transcript of the hearings and copies of the exhibits be appended to the PSIs.

Watson and Beketic were each sentenced to twelve (12) years in prison and ordered to pay a $50 fee assessment to the U.S. Attorney. They now timely appeal their sentences and the district court's treatment of the PSIs.

Watson and Beketic contend that in determining their sentences, the district court relied on a speculative, unfounded statement contained in the PSIs regarding the amount of methamphetamine that could have been produced, and thus their sentences were imposed in violation of due process. Beketic also apparently argues that inaccurate information in the PSI regarding how he raised his child and the possession of dangerous weapons, as well as the PSI's unfounded characterization of him as "dangerous," inevitably had an impact on the district court's sentencing determination and consequently violated his due process rights. These due process challenges clearly lack merit.

This court has held that in determining the appropriate sentence, "reliance upon information which is materially untrue, or, if not shown to be false, to be so lacking in indicia of reliability as to be of little value violates due process, and requires remand for resentencing." United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir. 1987); see also United States v. Weston, 448 F.2d 626, 631 (9th Cir. 1971), cert. denied, 404 U.S. 106 (1972). A corollary to this principle is that "unfounded assumptions or groundless inferences, although based upon proper and accurate information may not, consistent with due process, form the basis of sentence." Safirstein, 827 F.2d at 1385.

In this case, we need not inquire whether any of the controverted information regarding the amount of methamphetamine produced, Beketic's daughter, or his possession of machine guns and hand grenades is false or plainly unreliable as the district court in this case clearly did not rely on any of the challenged assertions. See United States v. Rachels, 820 F.2d 325, 328 (9th Cir. 1987) (where court does not rely on challenged information, the sentence will be affirmed irrespective of the accuracy of such information); United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir. 1985), cert. denied, 474 U.S. 1068 (1986) (same).

Under Federal Rule of Criminal Procedure 32(c) (3) (D), when a defendant challenges the accuracy or reliability of their PSI prior to sentencing, the sentencing court must either (1) make a finding regarding the challenged information in the PSI or (2) to make a determination that such a finding is unnecessary because the challenged matter will not be taken into account at sentencing. See Fed. R. Crim. P. 32(c) (3) (D); United States v. Fernandez-Angulo, 863 F.2d 1449, 1456 (9th Cir. 1988).2 

Here, in accordance with Rule 32(c) (3) (D)'s requirements, the district court explicitly stated at the sentencing hearings that it would not rely on the majority of the disputed information in the PSIs. Specifically, the district court stated that it would accept as true Beketic's testimony that only the sample amount of 20.5 grams of methamphetamine seized by law enforcement authorities was actually produced and that it would not consider the statements regarding Beketic's daughter or his alleged possession of machine guns or hand grenades.3  This court has explicitly stated that we must take such statements of nonreliance by the district court at face value, "because if we do not do so, we will have abandoned our reliance on the good faith of our district court judges." Gonzales, 765 F.2d 1393 at 1397; see also United States v. Lee, 648 F.2d 667, 669 (9th Cir. 1981) (mere awareness of prejudicial information by trial judge does not taint sentence if not relied on).

With respect to the PSI's characterization of Beketic as "dangerous," the district court noted that this assertion in the PSI "is an expression of opinion by the probation officer" rather than a possible factual inaccuracy. It then stated that in its view, both Watson and Beketic "properly are regarded as dangerous to the community." In light of Watson's and Beketic's narcotics trafficking-related convictions under 21 U.S.C. § 841(a), and the presence of aggravating individualized circumstances, the PSI's and district court's classification of the defendants as "dangerous" is clearly appropriate. See United States v. Dominguez, 783 F.2d 702, 706 (7th Cir. 1986) (under Bail Reform Act of 1984, 18 U.S.C. § 3142(e), if there is probable cause to believe person has committed an offense for which a maximum term of imprisonment of ten years or more is prescribed by the Controlled Substances Act, 21 U.S.C. 801 et seq., person presumed to be danger to the community).

The record unequivocally demonstrates that the district court did not rely on any of the alleged factual inaccuracies, nor on any unfounded assumptions or groundless inferences in sentencing Watson and Beketic. Consequently, their sentences fully comport with due process standards.

There is also no merit to the appellants' contention that the district court's failure to strike the alleged inaccurate information from the PSIs violates their due process rights since their parole possibilities will be prejudiced as a result of the inaccuracies which remain in their record. Watson and Beketic have ample administrative remedies at their disposal to prevent harm in the parole proceedings due to the alleged inaccurate information. Specifically, under 28 C.F.R. Sec. 219(c), a person may contest the accuracy of his PSI at his parole hearing.4  See United States v. Heisinger, 833 F.2d 1269, 1270 (8th Cir. 1987); see also Maynard v. Havenstrite, 727 F.2d 439, 441 (5th Cir. 1984). It arguably would be more sensible to require the district court to strike from the PSI any disputed material found to be false or simply not considered in determining the sentence. See Fernandez-Angulo, 863 F.2d at 1457 n. 7. (if goal of Rule 32(c) (3) (D) is to avoid improper consideration of controverted allegations by such bodies as Bureau of Prisons and Parole Commission, "it is seemingly more sensible to have the district judge strike from the presentence report any controverted material which he or she does not rely on in determining the appropriate sentence"). However, Congress chose only to require the sentencing court to attach a transcript to the PSI showing the court's factual findings or its nonconsideration of disputed material. Since meaningful administrative remedies are available to prevent prejudice from reliance on alleged incorrect information in parole proceedings, the district court's course of action in accordance with Rule 32(c) (3) (D) does not offend due process. See Heisinger, 833 F.2d at 1270.

Beketic next contends that his twelve-year sentence amounted to cruel and unusual punishment. This contention lacks merit.

The sentence imposed upon Beketic was within the statutory range under 21 U.S.C. § 841(b) (1) (C) ("a term of imprisonment more than 20 years"). Notwithstanding this fact, Beketic maintains that since his sentence is longer in duration than the district or national averages for the same offense it is disproportionate to his offense and thus violates his Eighth Amendment rights.

First, Beketic offers no evidence to establish that his sentence is in fact appreciably greater than the sentence imposed upon other individuals convicted of the same offense. Even if Beketic's assertion is true, however, such a fact lacks constitutional significance.

The Supreme Court has noted that " [o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [are] exceedingly rare." Rummel v. Estelle, 445 U.S. 263, 272 (1980) (quoted in Solem v. Helm, 463 U.S. 277, 289-90 (1983)). Moreover, this court has held that " [b]ecause individual circumstances may vary from one offender to another, persons convicted of the same crime need not receive similar sentences. United States v. Meyer, 802 F.2d 348, 353 (9th Cir. 1986), cert. denied, --- U.S. ----, 108 S. Ct. 71 (1987). A district court is not required to reconcile a particular defendant's sentence with the sentences that other courts have imposed on other defendants. Id. at 353. Accordingly, Beketic's sentence does not constitute cruel and unusual punishment solely because his sentence is higher than those imposed on other defendants at the national or local level.

In sentencing Beketic, the district court was faced with an individual who pled guilty to charges of conspiracy to manufacture and distribute methamphetamine, illegally possessed numerous firearms at the time of his arrest, and had two prior felony convictions on his record. Accordingly, his sentence of twelve years imprisonment, well below the maximum prison term for this offense, is clearly not disproportionate. Therefore, we affirm the twelve-year sentence. However, as the special assessment on convicted persons is unconstitutional, United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), we vacate that portion of the court's sentencing order imposing the $50 assessment to the United States Attorney.

AFFIRMED IN PART; VACATED IN PART.

 *

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

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

Specifically, although only 20.5 grams of crystallized methamphetamine and four quarts of liquid methamphetamine were recovered during the police search, the PSI indicates that 40-50 pounds of methamphetamine could have been manufactured with the 100 pounds of phenylacetic acid found missing from a drum of phenylacetic acid seized during the search of Watson and Beketic's residences

 2

In order to fully comply with Rule 32(c) (3) (D), the sentencing court must append to the PSI a written record of the courts findings or determinations. See Fed. R. Crim. P. 32(c) (3) (D). The written record may consist of a copy of the defendant's objections and the portion of the sentencing transcript indicating the court's decision not to consider the controverted matter. See Fernandez-Angulo, 863 F.2d at 1456. The district court complied with Rule 32(c) (3) (D) in this case by attaching a copy of the sentencing transcript, which contained the district court's determinations regarding the disputed material, to both defendants' PSIs

 3

Although the district court did not explicitly state that it would not rely on the allegation in the PSI concerning Beketic's possession of hand grenades, nonconsideration of the hand grenades can reasonably be assumed since the issue of the possession of machine guns and hand grenades arose at the same time in the proceedings and the same witness' testimony formed the basis for the PSI conclusion regarding the possession of both weapons

 4

Section 28 C.F.R. 219(c) provides, in relevant part:

The Commission may take into account any substantial information available to it in establishing the prisoner's offense severity rating, salient factor score, and any aggravating or mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond. If the prisoner disputes the accuracy of the information presented, the Commission shall resolve such dispute by the preponderance of the evidence standard; that is, the Commission shall rely upon such information only to the extent that it represents the explanation of the facts that best accords with reason and probability....