Unpublished Disposition, 933 F.2d 1016 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1016 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Carolyn HENDERSON, Defendant-Appellant.

No. 90-56049.

United States Court of Appeals, Ninth Circuit.

Submitted May 10, 1991.* Decided May 17, 1991.

Before TANG, REINHARDT and WIGGINS, Circuit Judges.


Carolyn Henderson appeals the district court's denial of her 28 U.S.C. § 2255 motion to vacate sentence. Henderson was sentenced on August 10, 1988 to seven years' imprisonment after pleading guilty to a host of narcotics-related offenses. She asserts errors made during the sentencing process. We review the district court's denial of a Sec. 2255 motion de novo, United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990), and AFFIRM.


Henderson's Sec. 2255 motion is based primarily on alleged inaccuracies in the presentence report, which purportedly resulted in an erroneous sentence. It is undisputed that neither Henderson nor her counsel objected during sentencing to the presentence report. It is established law in this circuit that a defendant who fails to object at the time of sentencing to alleged inaccuracies in the presentence report waives her right to challenge the presentence report by way of a Sec. 2255 motion. Id. (citing United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981)).

Henderson contends that she was unable to present appropriate objections to the presentence report because she and her counsel, Terry Amdur, received the report only ten minutes prior to sentencing. Essentially, Henderson contends that the district court violated Fed. R. Crim. P. 32(a) (3) (A) by not providing her with a copy of the report at a reasonable time before sentencing.1  However, the Supreme Court has held that absent a "fundamental defect which inherently results in a complete miscarriage of justice", the failure to follow the formal requirements of Rule 32 is not in itself error that can be raised by Sec. 2255 collateral attack. Hill v. United States, 368 U.S. 424, 428 (1962); see also United States v. McAdams, 759 F.2d 1407, 1409 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 579 n. 7 (9th Cir. 1982). We find no such defect in the instant case, and therefore, Henderson's contention regarding her receipt of the presentence report is not appropriately addressed through a Sec. 2255 motion.

Henderson argues that the district court erred in sentencing her to seven years while her codefendants received disparate sentences.2  Because Henderson's conduct occurred before November 1, 1987, the United States Sentencing Guidelines did not apply to the district court's imposition of sentence. United States v. Rewald, 835 F.2d 215, 216 (9th Cir. 1987). Under pre-Guideline sentencing, the district court had the discretion to impose disparate sentences upon codefendants, and a sentence which is within statutory limits is "generally not subject to review." United States v. Endicott, 803 F.2d 506, 510 (9th Cir. 1986). Henderson's sentence is within the statutory bounds for her crimes, and therefore, we find that the district court was within its discretion in sentencing her to seven years.


The district court's denial of Henderson's Sec. 2255 motion is AFFIRMED.


The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 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


The version of Rule 32 applicable to Henderson's sentencing reads in pertinent part as follows:

At a reasonable time before imposing sentence the court shall permit the defendant and the defendant's counsel to read the report of the presentence investigation....

Since 1983, Rule 32(a) (3) (A) has required "mandatory disclosure of the [presentence] report to the defendant and his counsel, regardless of the defendant's failure to request the report." United States v. Schlette, 842 F.2d 1574, 1578 (9th Cir. 1988) as amended, 854 F.2d 359 (9th Cir. 1988); see also Fed. R. Crim. P. 32 Advisory Committee Notes to 1983 Amendment.


Henderson's codefendants received sentences as follows: Robin Clay, one year and one day; Gregory Washington, ten years; Anthony Anderson, ten years