United States of America, Plaintiff-appellee, v. Richard Lopez, Defendant-appellant, 62 F.3d 1426 (9th Cir. 1995)

Before: BROWNING, and BEEZER, Circuit Judges, and JONES,^**  District Judge.

MEMORANDUM^*** 

The district court violated Federal Rule of Criminal Procedure 32(a) (1) (A) by failing to inquire whether Lopez had read the presentence report and discussed it with his counsel. U.S. v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir. 1994). However, the only specific fact that Lopez asserts he was prevented from disputing is a statement attributed to a seventeen year-old report of a probation officer that Lopez had admitted to occasional marijuana use.¹  U.S. v. Sustaita, 1 F.3d 950, 954 (9th Cir. 1993). Failure to contest this statement could not have prejudiced Lopez in light of the presentence report's extensive uncontested recital of his many contacts with the criminal justice system, including jury convictions for murder, discharging a firearm at an occupied motor vehicle, and dissuading a witness by force or threat, and a guilty plea for possession of PCP. The court's error was harmless and provided no ground for reversal. Davila-Escovedo, 36 F.3d at 844.

The district court fully complied with the requirements of Rule 32(c) (3) (D) by making explicit findings from the bench and expressly adopting the findings of the presentence report. U.S. v. Rosales, 917 F.2d 1220, 1222 (9th Cir. 1990).

The district court's determination that Lopez was a "manager or supervisor" in the conspiracy was not clearly erroneous. The government presented evidence that Lopez supervised several other participants in the conspiracy. U.S.S.G. Sec. 3B1.1, Application note 2; see also U.S. v. Helmy, 951 F.2d 988, 997 (9th Cir. 1991). Lopez recruited Dominguez to drive the truck containing the stolen cargo and directed Dominguez where to drive the truck. Lopez later directed several other co-conspirators to buy some bolt cutters to use in the enterprise, and was in charge of arranging for a buyer of the stolen cigarettes. U.S. v. Koenig, 952 F.2d 267, 274 (9th Cir. 1991).

The district court erred in sentencing Lopez to 77 months for his conviction on count one of the indictment. The maximum penalty under this section is five years. 18 U.S.C. § 371.

AFFIRMED except that Lopez's sentence is VACATED and REMANDED with instructions to the district court to impose the concurrent terms of imprisonment of 60 months on count one and a sentence of 77 months on count two of the indictment.