857 F2d 1479 United States v. I Dann

857 F.2d 1479

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Richard I. DANN, Defendant-Appellant.

No. 87-1063.

United States Court of Appeals, Ninth Circuit.

*

Submitted March 23, 1988.
Decided Aug. 25, 1988.

Before BRUNETTI, KOZINSKI, and DAVID R. THOMPSON, Circuit Judges.

1

MEMORANDUM**

2

Richard Dann appeals pro se the district court's denial in part of his Rule 35 motion for reconsideration of his sentence. Dann contends that his presentence report contains incorrect information and that the district court failed to treat this information in compliance with Fed.R.Crim.P. 32(c)(3)(D). We affirm.

FACTS

3

Pursuant to a plea agreement, Richard Dann pleaded guilty to one count of mail fraud, in violation of 18 U.S.C. Sec. 1341. Dann pleaded guilty to fraudulently inflating an insurance claim following the alleged robbery of his jewelry store, and then sending this claim through the mail.

4

At the sentencing hearing, the United States Attorney stated that Dann was guilty of engineering a sham robbery that led to the fraudulent inflation of his insurance claim. The court responded that the allegations of the sham robbery were unproven and not part of the plea agreement, and that Dann would be sentenced only on the basis of his plea of guilty to mail fraud. Dann was sentenced to two years in custody.

5

After the district court denied Dann's first motion for reconsideration of his sentence, which is not the subject of this appeal, Dann filed a second motion for reconsideration and modification of his sentence. In this motion, Dann contended that the presentence report contains erroneous information regarding the severity of his offense. Specifically, Dann alleged that the presentence report inaccurately suggests that Dann fraudulently inflated the insurance claim by $200,000 and that he engineered a sham robbery. Dann argues that he pleaded guilty to using the mail to fraudulently inflate his insurance claim by only $17,000 (not $200,000, as alleged by the government in the presentence report), and that the allegation of a sham robbery is unproven and not part of the plea agreement.1

6

The district court granted Dann's motion in part. In response to Dann's contention that his presentence report contained erroneous information regarding his offense, the court ordered that a transcript of the sentencing hearing be prepared and appended to the presentence report in order to reflect the court's view of the case. Dann timely appeals.

ANALYSIS

7

When a defendant challenges information in the presentence report, the district court must either make written findings as to the controverted information, or state that findings are unnecessary because the court will not rely on the disputed information. Fed.R.Crim.P. 32(c)(3)(D); United States v. Rachels, 820 F.2d 325, 327 (9th Cir.1987). The court must also append a written record of its determination to the presentence report. Fed.R.Crim.P. 32(c)(3)(D); United States v. Edwards, 800 F.2d 878, 881 (9th Cir.1986).

A. Sham Robbery

8

The district court, at the sentencing hearing, explicitly stated that it would not rely on the disputed information in the sentencing report regarding the sham robbery when determining Dann's sentence. The sentencing court stated that the court's sentence would be limited to the one count of mail fraud, and that it would be error to sentence Dann on the basis of the government's unproven allegations of a sham robbery. Moreover, in listing the factors that it would consider in sentencing Dann, the court reasserted that it would not consider the allegation of the sham robbery. Accordingly, the district court satisfied the first requirement of Rule 32(c)(3)(D) by stating that the controverted sham robbery allegation would not be taken into consideration in sentencing. See Fed.R.Crim.P. 32(c)(3)(D); Rachels, 820 F.2d at 327.

9

The district court also complied with the requirement of Rule 32(c)(3)(D) mandating the court to append a written record of its determination to the presentence report. See Fed.R.Crim.P. 32(c)(3)(D); Edwards, 800 F.2d at 881. In its partial grant of Dann's Rule 35 motion, the court ordered that a transcript of the sentencing hearing should be prepared, and that this transcript should be appended to and accompany the presentence report. Thus, the district court satisfied the requirements of Rule 32(c)(3)(D). See United States v. Salas, 824 F.2d 751, 753 (9th Cir.), cert. denied, 108 S.Ct. 465 (1987) (district court complied with Rule 32 when, at a Rule 35 hearing, it corrected its previous error by explicitly stating that it did not rely on the contested matters, and by ordering a copy of the transcript of these statements be attached to the presentence report).

B. Dollar Amount of Offense

10

Dann also contends that, as a result of the government's allegation that he engineered a sham robbery, the government stated in the presentence report that the entire $200,000 insurance claim was the amount of his offense.2 Dann asserts, however, that there was an actual robbery, and that he sustained a loss, but that he inflated this loss by $17,000. Accordingly, Dann contends that he did not inflate his claim by $200,000, and that he pleaded guilty to inflating his claim by only $17,000.3 Thus, Dann contends that the information in the presentence report regarding the dollar amount of his offense is false, and that the court did not adequately correct this information.

11

We find that the district court substantially complied with Rule 32(c)(3)(D) in its treatment of the challenged dollar amount. At sentencing, the district court did not include the government's dollar amount among the factors it considered in sentencing Dann. Indeed, the court stated that "there was apparently no loss to the victim of the offense." In addition, the district court made an implied determination that it would not consider the government's dollar amount of the offense when it determined that it would not consider the sham robbery allegation. We conclude that this implicit finding satisfied Rule 32(c)(3)(D). Cf. United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984) (finding that the district court "substantially complied" with Rule 32, where, even though it failed to explicitly state that it would not rely on contested facts, the court indicated that two disputed points did not matter). The court therefore satisfied the second requirement of Rule 32(c)(3)(D) by attaching the transcript of the sentencing hearing to the presentence report. See Salas, 824 F.2d at 953.

12

While we find there was substantial compliance with Rule 32, we repeat our warning in Ibarra, 737 F.2d at 827, that district courts should follow the command of Rule 32(c)(3)(D) more precisely. As we have stated in more recent cases, strict compliance with Rule 32 is required, and "failure to comply will result in remand." United States v. Sharon, 812 F.2d 1233 (9th Cir.1987) (quoting Edwards, 800 F.2d at 881).

13

AFFIRMED.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 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 Circuit Rule 36-3

1

The motion also included a request for transfer to another prison facility, and a request for a reduction of sentence based on Dann's health and family concerns. These other issues are not the subject of the present appeal

2

Dann filed a motion to amend his brief. Dann seeks to amend his brief in order to address the question of the district court's treatment of the dollar amount of his crime. However, the question of the dollar amount was fully addressed in his Rule 35 motion. Accordingly, this court need not grant Dann's motion to amend his brief in order to address this question. The motion is denied

3

The plea agreement does not mention a dollar amount of Dann's offense