Unpublished Disposition, 934 F.2d 325 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.Robert ROULAND, Defendant-Appellant.

No. 90-10116.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 1991.Decided May 31, 1991.

Before HUG and POOLE, Circuit Judges, and ATKINS,^*  District Judge.

MEMORNADUM^** 

Robert Rouland appeals his sentence, following a guilty plea, for trafficking in counterfeit goods, in violation of 18 U.S.C. § 2320, and aiding and abetting, in violation of 18 U.S.C. § 2. We remand for resentencing.

I.

We find no abuse of discretion in the district court's denial of Rouland's motion for discovery of his codefendants' presentence investigation reports. Disclosure of the reports was not necessary to demonstrate that Rouland's sentence was unconstitutionally disproportionate to the sentences reached by his codefendants.

"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) (citations omitted). "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." Id. Moreover, unlike the situation presented in United States v. Capriola, 537 F.2d 319 (9th Cir. 1976) (per curiam), where the defendant claimed his disproportionate sentence unconstitutionally penalized him for exercising his right to stand trial, Rouland did not elect to stand trial in this case. The district court was therefore not required to explain the basis for the disparate sentences. See id. (noting that Capriola has been limited to situations where a defendant's constitutional right to stand trial is implicated) (citing United States v. Hall, 778 F.2d 1427, 1428-29 (9th Cir. 1985)).

In addition, at a hearing on Rouland's motion for discovery of the presentence reports, the district court, in denying the request for disclosure, indicated it would review the presentence reports of Rouland's codefendants prior to imposing sentence; at sentencing, the court indicated that it had reviewed the codefendants' reports. We find this procedure satisfactorily accounted for Rouland's concerns over the accuracy of the reports. Finally, the district court specifically stated at sentencing that the one-year term was appropriate in light of Rouland's participation in the counterfeit watch scheme. Rouland's involvement in the scheme is more than adequately supported by the factual statement set forth in the plea agreement that was relied upon by the court at sentencing.

We therefore conclude that Rouland has failed to demonstrate an overriding need for disclosure "necessary to serve the ends of justice." United States v. Schlette, 842 F.2d 1574, 1579 (9th Cir.), amended on other grounds, 854 F.2d 359 (1988).

II.

Rouland additionally contends the district court erred by failing to make specific findings and determinations regarding Rouland's numerous objections to the presentence report.

Fed. R. Crim. P. 32(c) (3) (D) provides as follows:

If the comments of the defendant and the defendant's counsel or testimony or other information introduced by them allege any factual inaccuracy in the presentence investigation report or the summary of the report or part thereof, 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. 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.

This court has held "that when the defendant challenges the factual accuracy of any matters contained in the presentence report, the district court must, at the time of sentencing, make the findings or determinations required by Rule 32." United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc). We have further noted that strict compliance with the Rule is required. Id.

In this case, the Government concedes the district court failed to make the requisite findings and determinations under Rule 32(c) (3) (D) and that a remand is therefore required. We note, however, that the district court expressly indicated at sentencing, pursuant to Rouland's suggestion and with the consent of the Government, that it would rely on the factual basis in support of Rouland's guilty plea set forth in the plea agreement memorandum for sentencing, rather than on any portions of the objected to presentence report. This finding appears to comply with Rule 32's alternative requirement that the court make an unambiguous determination that controverted matters will not be taken into account in sentencing. See Fed. R. Crim. P. 32(c) (3) (D) (ii); Fernandez-Angulo, 897 F.2d at 1516 & n. 2.

It is nevertheless unclear whether this determination by the district court properly took into account all of the various objections to the presentence report raised by the defense. We therefore remand this case to the district court to explicitly make the requisite findings or determinations, to append a copy of these findings or determinations to the presentence report, and for resentencing in accordance therewith. See Fernandez-Angulo, 897 F.2d at 1516-17.

REMANDED.