Unpublished Disposition, 889 F.2d 1094 (9th Cir. 1988)

MEMORANDUM^** 

On September 2, 1986, Lester Dee Berg ("Berg") pled guilty to mail and wire fraud, pursuant to 18 U.S.C. §§ 1341, 1343, for his participation in a scheme to defraud investors in wholesale distributorships to sell home burglar alarm and security systems.

Pro se federal prisoner Berg appeals the denial of his post-sentence motions to withdraw his guilty plea, under Fed. R. Crim. P. 32(d), and to correct contested facts in his presentence report, under Fed. R. Crim. P. 32(c) (3) (D) and 28 U.S.C. § 2255. Further, Berg contends he received ineffective assistance of counsel. We have jurisdiction to consider this appeal under 28 U.S.C. § 1291. We affirm.

Fed. R. Crim. P. 32(d) provides that a post-sentence motion to withdraw a plea "may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255." Berg was sentenced on November 24, 1986 and his Rule 32(d) motion was filed on April 7, 1988. This motion was denied as was Berg's subsequent motion for reconsideration.

The district court denied Berg's motion to withdraw his plea because it lacked jurisdiction to consider the motion, relying on United States v. Baker, 790 F.2d 1437, 1438 (9th Cir. 1986). In Baker, the Ninth Circuit noted that under a 1983 amendment to Rule 32(d) a trial court cannot entertain a post-sentence motion to withdraw plea, unless brought pursuant to 28 U.S.C. § 2255.

In a motion for reconsideration, Berg sought to recharacterize his original motion as one brought under section 2255. It was not error for the district court to deny reconsideration on this basis, as there was a lack of jurisdiction to consider the original motion. However, Berg is not foreclosed from seeking to withdraw his plea in a proper section 2255 motion filed with the district court.

On September 2, 1987, Berg filed a motion under 28 U.S.C. § 2255 to correct inaccuracies in his presentence report pursuant to Fed. R. Crim. P. 32(c) (3) (D). The district court opened a separate civil action for the consideration of this section 2255 motion.

Berg contends that the district court violated the second part of Rule 32(c) (3) (D). The second part of the rule provides that " [a] written record of ... findings and determinations [concerning alleged factual inaccuracies in the presentence investigation report which are raised by the defendant and the defendant's counsel] shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons."

Two factual inaccuracies were raised by Berg's appointed counsel at the sentencing hearing. The first was an allegation that Berg held stock in Sound Around, Inc., a company through which Berg and his co-defendants allegedly offered the distributorships. In fact, no shares had issued in this company. The Government informed the district court at the sentencing hearing that it did not object to this correction. The second inaccuracy pertained to the probation officer's statement that Berg "had considerable difficulty admitting that he was in fact the principal owner of PCL, GES and SAI," companies which Berg and his co-defendants purportedly used in the distributorship fraud scheme. Berg admitted that he was a principal owner of the first two companies but not the third. The district judge decided not to correct the presentence report on this matter but stated that he would consider Berg's statement with reference to the probation officer's comment. We conclude that the judge's statement was an acknowledgment that the reason Berg had difficulty in the admission was that he was not a principal owner of the third company. The judge's statement was in effect a way of stating that he would not rely on that adverse comment in the probation report. Although under all of the circumstances, we conclude that the statement constituted compliance with Rule 32 in this particular instance, we note that the Rule contemplates an express finding and determination.

The Government concedes that the district court failed to comply with the second part of Rule 32(c) (3) (D). However, in United States v. Knockum, 881 F.2d 730 (9th Cir. 1989), the Ninth Circuit held that a violation under the second part of Rule 32(c) (3) (D) is not cognizable under section 2255. The court in Knockum reasoned that there was no remedy under section 2255 because relief was available under Fed. R. Crim. P. 36, which allows for correction of clerical mistakes "by the [district] court at any time ... after ... notice."¹ 

Rule 36 relief may be unnecessary if the district court has already forwarded a transcipt of the sentencing hearing to the Bureau of Prisons. Compare Knockum, 881 F.2d at 733. In the event the transcript has not been transmitted, consistent with Knockum, Berg has an avenue available to him under Rule 36.

III CONCLUSION

The district court properly found that it lacked jurisdiction to consider Berg's post-sentence Rule 32(d) motion to withdraw his plea. Knockum holds that the relief Berg seeks to correct inaccuracies in his presentence report is unavailable under section 2255. If the district court has not yet complied with the second part of Rule 32(c) (3) (D), Rule 36 relief may be available. Because the relief Berg requests may be addressed upon the filing of appropriate motions we need not address his allegation of ineffective assistance of counsel.

AFFIRMED.