Unpublished Disposition, 930 F.2d 29 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 930 F.2d 29 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Randy BROWN, a/k/a Randy Lamont Patterson, a/k/a LamontPatterson, Defendant-Appellant.

No. 89-10437.

United States Court of Appeals, Ninth Circuit.

Submitted March 13, 1991* .Decided March 27, 1991.

Before D.W. NELSON, KOZINSKI and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM** 

Randy Brown appeals pro se the district court's denial of his motion to correct his presentence report pursuant to Fed. R. Crim. P. 32(c) (3) (D). He also claims that the district court violated Rule 32(a) (1) (A) by failing to provide him and his counsel with an opportunity to see and discuss the presentence investigation report prior to imposition of sentence. We affirm.

We review de novo a district court's denial of a habeas corpus petition, though we may only reverse factual determinations underlying the decision if they are clearly erroneous. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

Appellant argues that he was sentenced on the basis of false and misleading information, namely that he was a member of the "Mob" conspiracy after 1980. He cites Fed. R. Crim. P. 32(c) (3) (D), which states that if the defendant or his counsel

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

We first note that neither appellant nor his counsel made any mention of errors in the report at the time of sentencing, despite the district judge's specific allotment of time to do so, or on appeal. The court was, therefore, not required to follow options (i) or (ii). See United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981) ("A defendant waives his right to attack the presentence report through a Sec. 2255 motion when he fails to avail himself of an opportunity to do so contemporaneously or on direct appeal.").

The district court, nevertheless, fulfilled both of these parts. Its finding agreed with appellant that he was no longer a member of the conspiracy after his withdrawal in 1980. The appellant's own brief carries the relevant language: "I think the record is replete by this time with references to the fact that the Brown brothers and Mr. Grogans are not claimed by the government to be, and have not found to be, involved in a conspiracy from December 1980 forward." More importantly, this language is evidence that the court kept this fact in mind at sentencing.

Appellant also claims that, in the language of the Rules, 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." Fed. R. Crim. P. 32(c) (3) (D). The district court also fulfilled this requirement. In response to a codefendant's similar complaint, the court explained: "I take it that my comment on the record as the judge who presided over the trial, and also the fact that this transcript will also go forward to the parole commission should be sufficient persuasion to them." As a result, we affirm the district court's denial of the motion to correct the report.

Appellant also claims that he was denied access to the presentence report until just minutes prior to sentencing. Rule 32 requires that " [b]efore imposing sentence, the court shall also (A) determine that the defendant and defendant's counsel have had the opportunity to read and discuss the presentence investigation report ..." Fed. R. Crim. P. 32(a) (1) (A). We have held that "the requirements of Rule 32(a) (1) (A) are met when the sentencing judge reasonably relies on evidence indicating that a defendant has read the presentence report and discussed it with counsel." United States v. Lewis, 880 F.2d 243, 246 (9th Cir. 1989).

Here, the district court did reasonably rely on such evidence. First, it recessed the sentencing for a day in response to coefendants'ts' counsels' objections of inadequate time to review the reports. Second, the court allotted time to defense counsel to address problems with the report. Neither Brown nor his counsel raised objections. Third, the probation officer stated that he hand-carried a copy of the report to Brown, who declined to read it. As a result, we cannot conclude that the report was given him with inadequate opportunity to review its contents.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth 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 Ninth Circuit Rule 36-3