Unpublished Disposition, 927 F.2d 612 (9th Cir. 1990)

MEMORANDUM^* 

Gary E. Zimmerli appeals his sentence imposed under the Sentencing Guidelines for passport fraud in violation of 18 U.S.C. § 1542 and for credit card fraud in violation of 18 U.S.C. § 1029(a) (2). Zimmerli argues that the district court made insufficient findings regarding his offense level under the Guidelines. We reject his argument and affirm.

Zimmerli pled guilty to making a false statement in a passport application, passport fraud and four counts of credit card fraud.¹  The Probation Officer drafted and filed a presentence report. The report calculated Zimmerli's offense level at 15, after adding two points for obstruction of justice because of Zimmerli's false testimony at an earlier suppression hearing. See Sentencing Guidelines Sec. 3C1.1. The Probation Officer also refused to subtract two points for acceptance of responsibility because of this obstruction of justice. See, Sentencing Guidelines Sec. 3E1.1 (increase for obstruction of justice ordinarily indicates defendant has not accepted responsibility). The report determined his criminal history category was IV and the applicable sentencing guidelines range was 30 to 37 months. See Sentencing Guidelines Table, Ch. 5, Pt. A.

Zimmerli filed objections to the presentence report claiming in relevant part that the Probation Office miscalculated his offense level. Zimmerli argued against a two point increase for obstruction of justice and claimed he was entitled to a two point reduction for acceptance of responsibility regardless of whether he had obstructed justice. The district court heard argument on these issues from both defense counsel and the government at Zimmerli's sentencing hearing on May 21, 1990. The court did not expressly rule on Zimmerli's objections nor make any findings regarding his offense level or criminal history category. Without explicitly adopting the presentence report, the court followed its recommendation and sentenced Zimmerli to 37 months in prison. Zimmerli did not request a more definitive ruling. The court also imposed a 3 year term of supervised release and ordered Zimmerli to pay $15,000 in restitution.

The Sentencing Guidelines provide that "when any factor important to the sentencing determination is reasonably in dispute, the parties shall be given an adequate opportunity to present information to the court regarding that factor." Sentencing Guidelines Sec. 6A1.3(a). In this case Zimmerli was given such an opportunity. The court heard argument from Zimmerli and the government concerning the appropriate guideline range. The record at the sentencing hearing shows the district court considered Zimmerli's objections but found them meritless. Even though the district court did not expressly adopt the presentence report, the record clearly shows the court found the position as stated in the report to be correct. The court agreed that Zimmerli's false testimony at his suppression hearing warranted a two point increase for obstruction of justice and that he was not entitled to a reduction for acceptance of responsibility. See Sentencing Guidelines Sec. 3C1.1. We encourage specific findings of fact by the district court in imposing sentence. See United States v. Sanchez-Lopez, 879 F.2d 541, 557-58 (9th Cir. 1989); United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990). We do not require the district court to utter any magic words in rendering its decision. No confusion exists in this case as to what the district court decided.

AFFIRMED.