Unpublished Disposition, 937 F.2d 614 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,v.John Lewis GRISSOM, Jr., Defendant-Appellant.

No. 88-6758.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.

Appeal from the United States District Court for the Central District of California, NO. CR-85-529-RG; Richard A. Gadbois, Jr., District Judge, Presiding.

C.D. Cal.

AFFIRMED.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


MEMORANDUM** 

John Lewis Grissom, Jr. appeals pro se the district court's dismissal of his 28 U.S.C. § 2255 motion to vacate his sentence. We review de novo, Iaea v. Sunn, 800 F.2d 861, 864 (9th Cir. 1986), and affirm.

Grissom contends that he did not receive a meaningful opportunity to review his presentence report. This contention lacks merit.

Fed. R. Crim. P. 32(a) (1) (A) "does not require the court to address a defendant directly concerning his knowledge of the presentence report." United States v. Maree, No. 89-50188, slip op. at 6502 (9th Cir. May 22, 1991) (quoting United States v. Lewis, 880 F.2d 243, 246 (9th Cir. 1989)). "Although the Rule places an affirmative duty on the sentencing court to ensure that [the] defendant and his counsel have read the presentence report and have discussed it before sentencing, that duty is met when the sentencing judge reasonably relies on evidence indicating that a defendant has read the presentence report and discussed it with counsel. Maree, No. 89-50188, slip op. at 6502.

Here, Grissom had nearly four months to review the presentence report.1 At the time of sentencing, the judge asked Grissom directly if he had read the presentence report. When Grissom replied that he had only read some of the report, the sentencing judge ordered Grissom to review the entire presentence report. Grissom then informed the judge he would read the report. He now contends, however, that he only skimmed the report. Nevertheless, during his comments to the court, Grissom never indicated that he needed additional time to review the report or that he did not understand the report. Accordingly, the district fulfilled the requirements of Rule 32(a) (1) (A).

Grissom further contends that the district court erred by not asking him if the presentence report was accurate. This contention lacks merit.

Rule 32 does not require that the district court pose a direct and specific question to the defendant concerning the presence of factual misinformation in the presentence report. Maree, No. 50188, slip op. at 6503. "It is sufficient that the defendant and his attorney have ample opportunity to alert the court of any presentence report inaccuracies." Id. at 6503. A defendant waives his right to attack errors in a presentence report through a section 2255 motion if he fails to object to the errors at the time of sentencing or on direct appeal. United States v. Keller, 902 F.2d 1391, 1393-94 (9th Cir. 1990).

Here, Grissom had ample opportunity to review the presentence report and challenge any factual inaccuracies it may have contained. Nevertheless, Grissom failed to object to the report at the time of sentencing. Accordingly, he has waived his right to attack any errors in his presentence report, and the district court properly dismissed his section 2255 motion. See Keller 902 F.2d at 1393-94.

Grissom contends that he received ineffective assistance of counsel because his attorney failed to advise him that the district court would rely on the information contained in the presentence report and that he could contest any information contained in the presentence report. This contention lacks merit.

To demonstrate ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance is demonstrated when "counsel made errors so serious that the counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 689. There is a strong presumption that counsel's conduct falls within "the wide range of reasonable professional assistance." Id. Prejudice is established if there is a reasonable probability that but for the counsel's error, the result of the proceeding would have been different. Id. at 694.

Grissom claims that he would have challenged inaccuracies contained in the presentence report had he received better advice from his attorney. Nevertheless, he fails to specify a single error within the report or how that error would affect the length of his sentence. Because Grissom has failed to establish that the alleged ineffective assistance of counsel prejudiced him, the district court properly dismissed the section 2255 motion.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 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