Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1991)

MEMORANDUM^** 

Appellant Donald Wright, Jr., pro se,¹  challenges the district court's denial of his motion to reconsider his sentence under Fed. R. Crim. P. 35. We affirm the district court's denial and remand for the limited purpose of instructing the district court to comply with the ministerial requirements of Fed. R. Crim. P. 32(c) (3) (D).

* We will not overturn the district court's denial of a motion for reduction of sentence absent a clear abuse of discretion. United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.) (citations omitted), cert. denied, 479 U.S. 963 (1986). "In determining whether a decision-maker abused his discretion, the reviewing 'court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.' " Id. (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971)).

II

Wright claims his motion should have been granted because the government breached its plea agreement with him in two respects: (1) by failing to make known his cooperation; and (2) by failing to recommend a substantial reduction in sentence based on his cooperation.

The government urges us not to reach these issues because Wright failed to raise them in his motion to the district court. In his motion, Wright did not mention his allegation that the government failed to make known to the probation office his cooperation. In any event, the record belies this allegation. The presentence investigation report states, "According to the case agent, each defendant was cooperative with the investigators with respect to their individual roles and knowledge of the overall scheme." Excerpt of Record ("E.R.") 91. The government therefore did make Wright's cooperation known.

As to the second plea bargain contention, Wright's motion vaguely alleged that the government had not lived up to its promise to recommend a substantial reduction, although its discussion of the issue appears in a section titled, "Factual Background." Because we give the benefit of doubt to pro se litigants, see Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc), we deem Wright's discussion in his motion sufficient to have raised the issue to the district court.

The second claim, however, fails on the merits. The plea agreement provided that "the government agrees to recommend to the court at the time of sentencing that his cooperation substantially reduce the sentence that would otherwise be imposed" only "if " Wright met two conditions, namely, that he: (1) "satisf [y] the terms of this agreement in all respects"; and (2) "lead [ ] to the development of substantial evidence of criminal activity in this investigation or any other investigation initiated as a result of Mr. Wright's cooperation." E.R. 62 (emphasis added). The government admits that Wright satisfied the first condition but denies that he met the second, claiming he merely confirmed what they already knew. Wright has come forward with no evidence showing that the district court clearly abused its discretion in crediting the government's claim that he had failed to lead the government to "substantial evidence of criminal activity."

III

Wright also challenges his sentence because of its disparity with those of his codefendants. We generally do not review, however, sentencing decisions within statutory limits.

It is within the discretion of the trial court to impose disparate sentences upon codefendants. Further, "a disparity in the sentences imposed upon codefendants does not indicate that the sentencing judge has abused his discretion or that review is required." A sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.

United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986) (citation omitted). See also United States v. Hall, 778 F.2d 1427, 1428 (9th Cir. 1985) ("It has long been the rule that the matter of sentencing is within the discretion of the sentencing judge and generally is not reversible as long as the sentence falls within the bounds set by statute"). Here, Wright's sentence was within statutory limits. As in Endicott, " [g]iven the limited nature of review of this issue, we find the district judge did not abuse [her] discretion." 803 F.2d at 510.

IV

Wright also contends, relying on Solem v. Helm, 463 U.S. 277 (1983), that his punishment is disproportionate to the crime and therefore unconstitutional. Solem set out factors to guide a proportionality analysis. These factors include "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292. The Court noted, however, that " ' [o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.' " Id. at 289-90 (emphasis in original) (quoting Rummel v. Estelle, 445 U.S. 263, 272 (1980) (emphasis added)). Therefore, " [r]eviewing courts ... should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes...." Id. at 290. Keeping those directives in mind, this court has held that a non-capital sentence "may be overturned only if it is 'grossly disproportionate to the offense committed.' " United States v. Kidder, 869 F.2d 1328, 1333 (9th Cir. 1989) (quoting United States v. Busher, 817 F.2d 1409, 1415 (9th Cir. 1987) (emphasis in original).

Wright offers statistical evidence purporting to show that 37% of those convicted of his offense nationwide received incarceration and that his sentence exceeded the average given for his offense by over three years. Even if accepted as true, this evidence would not show that Wright's sentence is "grossly disproportionate," see Kidder, 869 F.2d at 1333, to his crime. There is no constitutional requirement that a court approximate national averages in sentencing offenders. Given the deference owed to the legislature's determination of appropriate punishments and the extreme hesitation of courts to declare a sentence cruel and unusual, the district court did not clearly abuse its discretion in rejecting this claim.

V

Finally, Wright contends that the district court sentenced him in violation of Fed. R. Crim. P. 32.²  Although he made his motion pursuant to Rule 35(b), which empowers the district court to reduce its sentence, his Rule 32 claim is cognizable under Rule 35(a), which provides that a district court "may correct a sentence imposed in an illegal manner." Because Wright moves pro se, we may liberally construe this portion of his motion as arising under Rule 35(a), rather than under the Rule 35(b) label he places on it. See Bretz, 773 F.2d at 1027 n. 1.

Rule 32(c) (3) (D) provides that if the defendant alleges

any factual inaccuracy in the presentence report ... the court shall, as to each matter controverted, make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.

This court has held that "Strict compliance with the Rule is required. We have consistently and frequently stated that when the district court failed to make the required Rule 32 findings or determinations at the time of sentencing, we must vacate the sentence and remand for resentencing." United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc).

Wright's presentence investigation report (PSI) states that the government conservatively estimated the amount of losses due to his fraud was between $3.7 and 4 million. E.R. 90. At sentencing, Wright disputed that estimation. He now claims a remand for resentencing is necessary because the district judge failed to make a finding regarding the amount of the fraud.

At sentencing, when confronted with Wright's contention, the district judge said, and both parties agreed, that the amount in question was "a large sum of money." E.R. 151-52. That estimation was sufficient for purposes of sentencing and shows that she relied on neither the government's nor Wright's specific proposed figures, thus satisfying Rule 32. A district judge need not conduct a fact-finding trial to determine with precision every disputed allegation in a PSI.

Rule 32(c) (3) (D) also provides, however, that "A written record of such findings and determinations shall be appended to and accompany any copy of the presentence investigation report thereafter made available to the Bureau of Prisons." The parties do not dispute that the district court failed to do this. This "technical violation of the Rule is a ministerial error which does not require resentencing. The technical error must, however, be corrected by ordering the district court to append to the presentence report the required findings or determinations." Fernandez-Angulo, 897 F.2d at 1517 (footnote and citations omitted). This requirement may be satisfied by appending a transcript of the district court's sentencing proceedings to Wright's PSI. United States v. Roberson, 917 F.2d 1158, 1159 (9th Cir. 1990). Therefore, we remand to the district court with instructions to append to Wright's PSI either a written record of its findings and determinations or the transcript of the sentencing proceedings in which those findings and determinations were made.³ 

AFFIRMED and REMANDED.