Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

MEMORANDUM^** 

Don Stephenson appeals the denial of his motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Stephenson contends that the district court erred in its use of national sentencing averages, comparable sentences from the Central District of California, and information regarding his expected parole release date.¹  Stephenson also questions the use of other unspecified information contained in his presentence report.² 

I. The District Court's Reliance on False or Inaccurate Information in Determining Stephenson's Sentence

Stephenson contends that the district court erroneously relied on false or inaccurate information. Whether the district court erroneously relied on false or inaccurate information in imposing a pre-guidelines sentence is reviewed for abuse of discretion. United States v. Ibarra, 737 F.2d 825, 826 (9th Cir. 1984).

A defendant challenging information used in his sentencing must show (1) that the information is false or unreliable, and (2) that the sentencing judge relied, at least in part, on this information. Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir. 1978). In its order denying the motion to vacate, set aside, or correct, the district court stated that it did not rely on the information alleged to be false or inaccurate. Unless there is clear evidence of reliance, the sentencing court's subsequent finding of non-reliance is conclusive. Farrow, 580 F.2d at 1356. Because Stephenson has pointed to no evidence to suggest that the district court relied on inaccurate or false information, this court must accept the district court's subsequent finding that it did not rely on the information alleged to be inaccurate or false. Stephenson therefore has failed to establish a due process violation under Farrow.

II. The District Court's Findings or Determinations Required Under Rule 32(c) (3) (D)

Stephenson contends that the district court failed to make required findings as to controverted matters, or make a determination that no such findings are necessary because the matter controverted will not be taken into account in sentencing under the Fed. R. Crim. P. 32(c) (3) (D). In order to obtain relief under Rule 32(c) (3) (D), a defendant must show that he raised his objection to the presentence report at the sentencing hearing. Objections not raised at the sentencing hearing are waived. United States v. Freeney, 841 F.2d 1000, 1002 (9th Cir. 1988). Stephenson raised a number of objections at the sentencing hearing. On each of these objections, the sentencing court made findings or determined that findings were not necessary because the court did not rely on the controverted information. Stephenson also raised new objections in his motion to vacate, set aside, or correct sentence. Because Stephenson did not object to the sentencing information at the time of sentencing, the district court was not required to make a finding on these issues under Rule 32(c) (3) (D). Therefore, the objections to this information are waived.

AFFIRMED.