Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1990)

Don STEPHENSON, Petitioner-Appellant,v.UNITED STATES Of America, Respondent-Appellee.

No. 89-55608.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 1, 1990.* Decided Oct. 10, 1990.



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.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 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


Stephenson was not sentenced under the sentencing guidelines because the offense committed occurred before November 1, 1987, when the guidelines became effective


Stephenson also argues that he was sentenced in violation of the ex post facto clause. The presentence report stated that Stephenson "initiated his involvement in this offense [on March 22, 1983] while he was still on state parole." But the conduct referred to by the district court was not made punishable under 18 U.S.C. § 2252(a) (2) until May 21, 1984. Nonetheless, the defendant entered a plea of guilty to activities occurring on or about June 18, 1984. And the district court stated that it did not rely on defendant's parole status in imposing sentence. Thus, 18 U.S.C. § 2252(a) (2) was not applied retroactively and no ex post facto violation occurred