Unpublished Disposition, 931 F.2d 61 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 931 F.2d 61 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Dearmond Arthur LYNCH, Defendant-Appellant.

No. 90-10309.

United States Court of Appeals, Ninth Circuit.

Submitted March 12, 1991.* Decided April 25, 1991.

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


Pursuant to the penalties described in the United States Sentencing Guidelines, appellant Dearmond Lynch was sentenced for manufacturing methamphetamine. He appeals claiming that the district court erred in calculating his offense level based on precursor chemicals not resulting in the finished product, in addition to the amount of methamphetamine seized. Lynch also argues that the district court improperly enhanced his sentence by two points for possession of a firearm during the commission of the offense. We affirm.

On July 14, 1989, a four-count superseding indictment was filed charging Lynch with conspiracy to manufacture methamphetamine, manufacture and aiding and abetting the manufacture of methamphetamine, possession of that drug with intent to distribute and use of a firearm in relation to a drug trafficking crime. On March 22, 1990, Lynch pled guilty to Count Two of the superseding indictment--manufacturing and aiding and abetting in the manufacture of methamphetamine.

Prior to judgment and sentencing on June 4, 1990, Lynch raised no objections to the presentence report's sentence range calculation. He failed to raise any objections to the presentence report at the time of sentencing and was sentenced to imprisonment for 168 months to be followed by three years of supervised release.

A defendant must raise any objections he may have to his sentencing at the sentencing hearing itself. United States v. Soliman, 889 F.2d 441, 445 (2nd Cir. 1989); U.S. v. Atehortua, 875 F.2d 149, 151 (7th Cir. 1989). Rule 32 of the Federal Rules of Criminal Procedure requires defendants to raise objections to the presentence report before sentence is pronounced. The Eastern District of California has also adopted procedures covering the lodging of presentence report objections. General Order 225. Lynch and his counsel were advised of General Order 225 on March 22, 1990 when this matter was referred to the probation office. Lynch did not file a written statement of objections as required by General Order 225, nor did he raise any objections at or before sentencing to the presentence report's range calculations. At sentencing, his only argument about the presentence report was that it needed to be corrected to reflect the relative culpability of co-defendants.

A sentencing judge is free to rely on any averment in the presentence report not controverted, Fed.Rule Crim.P. 32(c) (3), unless there is plain error. Fed.Rule Crim.P. 52(b). Lynch has not presented to this Court any basis upon which his failure to follow established procedures should be excused, nor has he established that the judge's decision constituted plain error. Lynch waived his right to object to the base offense level calculation and the enhancement for possessing a firearm.

The lower court's decision is 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