Michael Wayne Reshard, Petitioner-appellant, v. United States of America, Respondent-appellee.michael Wayne Reshard, Petitioner-appellant, v. United States of America, Respondent-appellee, 967 F.2d 590 (9th Cir. 1992)

MEMORANDUM^** 

Petitioner Michael Wayne Reshard appeals the district court's denial of his consolidated motions for habeas corpus relief under 28 U.S.C. § 2255 .¹  He argues that: (1) he was illegally sentenced after the revocation of his supervised release; (2) the trial court improperly considered false information in imposing his sentence; (3) his attorney failed to provide him with effective assistance; (4) he was denied his right to allocution; and (5) he was improperly denied an evidentiary hearing on his claims. We have jurisdiction under 28 U.S.C. §§ 2255 and 1291 and we affirm.

FACTS

On November 4, 1988, Reshard pleaded guilty to one count of making a false statement in the acquisition of a firearm. See 18 U.S.C. § 922(a) (6). He was sentenced to ten months in federal prison, plus three years of supervised release. The terms of this release forbade Reshard from violating any federal, state, or local criminal law, or any regulation of the United States Probation Office, including General Order 225. Reshard was also required to participate in a drug treatment program, and to refrain from possessing or owning a firearm. On December 4, 1989, Reshard was released from prison and began his supervised release.

On August 6, 1990, the government moved to revoke Reshard's supervised release because he had failed three separate drug tests and had possessed a handgun. After conducting a hearing on the government's motion, the court found that Reshard had indeed failed three drug tests, and had violated the terms of his supervised release.²  As a result, the court revoked Reshard's release and ordered him returned to prison for two years.

Reshard then filed his motions challenging this sentence. The district court denied the motions without conducting an evidentiary hearing, and this appeal followed.³ 

DISCUSSION

Reshard first argues that his sentence, imposed after the revocation of his supervised release, was illegal. He contends the district court should have sentenced him under 18 U.S.C. § 3565(a) (2), rather than 18 U.S.C. § 3583(e) (3). We disagree.

18 U.S.C. § 3583(e) (3) provides that:

The court may, after considering the factors set forth in section 3553(a) (1), (a) (2) (B), (a) (2) (C), (a) (2) (D), (a) (4), (a) (5), and (a) (6), ... revoke a term of supervised release and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release....

This section allows the court to return a defendant to prison for up to two years if the offense giving rise to the revocation of the supervised release was a class C or D felony. 18 U.S.C. § 3583(e) (3).

Because a violation of 18 U.S.C. § 922(a) (6) is punishable by a maximum five-year prison term, it is a class D felony. 18 U.S.C. § 3559(a) (4). As a result, the district court did not err in imposing a two-year prison term when it revoked Reshard's supervised release.

Similarly, the district court did not abuse its discretion in denying Reshard credit for the time he previously served in custody. Section 3583(e) (3) does not permit a sentencing court to grant such credit.⁴  See United States v. Behnezhad, 907 F.2d 896, 898 (9th Cir. 1990); United States v. Boling, 947 F.2d 1461, 1463 (10th Cir. 1991).

Reshard also argues that he was denied an opportunity to address the court before he was sentenced. An opportunity to make a statement and present any mitigating information to the district court prior to sentencing is required by Fed. R. Crim. P. 32(a). See Green v. United States, 365 U.S. 301, 305 (1961).

During the revocation hearing Judge Wilson asked, "What does Mr. Reshard have to say?" The record does not disclose whether the court directed this inquiry to Reshard, to his counsel, or to both of them. In any event, the transcript reflects that Judge Wilson spoke at length with Reshard's attorney after he asked what Reshard had to say. There is no evidence that the court failed to allow Reshard to speak. Absent evidence that the district court prevented Reshard from responding until the end of the hearing, we decline to find a violation of Reshard's right to allocution. See United States v. Franklin, 902 F.2d 501, 507 (7th Cir.) (court not obligated to repeat the invitation to speak even if defense counsel responds to it first), cert. denied sub nom. Mann v. United States, 111 S. Ct. 274 (1990).

Reshard next contends his right to due process was violated because the district court relied on false information when it sentenced him. See United States v. Caprell, 938 F.2d 975, 980 (9th Cir. 1991); United States v. Columbus, 881 F.2d 785, 787 (9th Cir. 1989). This contention is belied by the record.

Judge Wilson asked counsel for both parties whether he could consider the allegation that Reshard may have possessed a firearm during his supervised release. The government responded by requesting that this allegation be dismissed. The government then "ask [ed] the court to sentence [Reshard] based on the three drug charges." Reshard points to no other testimony or comments by Judge Wilson indicating that the district court considered the weapon possession allegation. Absent such a showing we must reject this claim.⁵  Caperell, 938 F.2d at 980.

Finally, we reject Reshard's argument that he was entitled to an evidentiary hearing. No such hearing is required when, as here, all the petitioner's claims are based on facts in the record before the court. United States v. Taylor, 648 F.2d 565, 573 (9th Cir.), cert. denied, 454 U.S. 866 (1981); Farrow v. United States, 580 F.2d 1339, 1352-54 (9th Cir. 1978) (en banc).

CONCLUSION

The district court's denial of Reshard's section 2255 motions is AFFIRMED.