Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 281 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Elroy James FRANKLIN, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Elroy James FRANKLIN, Defendant-Appellant.

Nos. 89-30280, 89-30281.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 18, 1990.* Decided Dec. 20, 1990.

Before GOODWIN, Chief Judge, and SCHROEDER and BRUNETTI, Circuit Judges.


In these consolidated appeals, Elroy Franklin appeals his sentence, imposed under the United States Sentencing Guidelines ("Guidelines"), following his guilty plea to four counts of bank robbery in violation of 18 U.S.C. § 2113(a) and (d). Franklin contends that the district court erred by failing to state in open court its reasons for imposition of concurrent 78-month sentences. Franklin also contends that the district court erred by failing to depart downward from the sentencing range established by the Guidelines, and by failing to make factual findings concerning Franklin's request for departure. We have jurisdiction over the first challenge under 28 U.S.C. § 1291, and we affirm in part. We lack jurisdiction to review the district court's discretionary decision not to depart downward, and we dismiss that part of the appeal. See United States v. Sanchez, 914 F.2d 1355, 1363-64 (9th Cir. 1990); United States v. Morales, 898 F.2d 99, 102-03 (9th Cir. 1990).

18 U.S.C. § 3553(c) requires that the district court state, in open court, the general reasons for its imposition of a particular sentence. United States v. Lockard, 910 F.2d 542, 546 (9th Cir. 1990). This requirement is satisfied if the district court "ma [kes] its reasons for imposing the sentence sufficiently clear." See id.

Here, at the sentencing hearing, the district court addressed Franklin's objections to the presentence report and determined that it would not rely on any of the contested matters when imposing the sentence. The district court also properly found that it need not make specific findings with respect to Franklin's argument for a downward departure from the applicable Guidelines range.1  Defense counsel noted that the applicable Guidelines range was 63 to 78 months imprisonment, and argued for a downward departure. The district court denied the requested downward departure because of Franklin's past record, and imposed a sentence within the Guidelines range on each count. These statements were "sufficiently clear" to meet the requirements of 18 U.S.C. § 3553(c). See Lockard, 910 F.2d at 546.



The panel unanimously finds this case suitable for disposition 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


Franklin argues that Fed. R. Crim. P. 32(c) (3) (D) required the district court to resolve his "dispute" of the presentence report's failure to recommend downward departure. In fact, Rule 32(c) (3) (D) only requires the district court to resolve allegations of "factual inaccuracy" in the report. Franklin did not dispute the factual accuracy of any information used by the district court in calculating the sentence. Therefore, the district court's failure to make factual findings with regard to Franklin's argument for downward departure did not implicate Rule 32