Unpublished Disposition, 940 F.2d 1536 (9th Cir. 1991)

MEMORANDUM^** 

Mark George Duncan appeals his sentence after he pleaded guilty pursuant to a plea agreement to charges of conspiracy to manufacture and distribute methamphetamine. He contends that the district court erred by (1) concluding that the prosecutor did not violate the plea agreement, and (2) failing to correct alleged errors in his presentence report. We reject these contentions and affirm.

DISCUSSION

We agree with the district court that the prosecutor's letter to the Parole Commission regarding allegations contained in dismissed counts did not violate the government's promise to dismiss all other pending charges against Duncan. See United States v. Clark, 781 F.2d 730, 732 (9th Cir. 1986). The government's letter related nothing new to the Parole Commission, but suggested only that allegations in the dismissed charges should be taken into account when making a parole determination.

Nothing in the plea agreement precluded the government from making such a suggestion to the Parole Commission. See id. Duncan's reliance on Davis v. United States, 649 F. Supp. 754 (C.D. Ill. 1986), is misplaced inasmuch as the Seventh Circuit has disavowed Davis. See Augustine v. Brewer, 821 F.2d 365, 369 n. 2 (7th Cir. 1987).

Duncan also contends that the district court erred by failing to make a determination at the time of resentencing whether the allegation as to his involvement in the cocaine transaction was true. He concedes, however, that the court expressly disregarded the allegation of that transaction in arriving at his sentence. This is all that Federal Rule of Criminal Procedure 32 requires. See United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 n. 2 (9th Cir. 1990) (en banc).

AFFIRMED.