985 F. 2d 576 - United States v. Spence

MEMORANDUM**

Levert Leneal Spence appeals his 70-month sentence imposed after his guilty pleas to being a felon in possession of a firearm and bank robbery in violation of 18 U.S.C. §§ 922(g), 2113(a). Spence contends that the district court erred by failing to make explicit factual findings pursuant to Fed.R.Crim.P. 32(c)(3)(D) regarding his challenge to the accuracy of the presentence report (PSR). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo the legality of a sentence, United States v. Hahn, 960 F.2d 903, 907 (9th Cir.1992), while we review for clear error the district court's underlying factual findings, United States v. Chapnick, 963 F.2d 224, 226 (9th Cir.1992).

Under Rule 32, if a defendant disputes factual statements in the PSR, the district court is required to make either "(i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing." Fed.R.Crim.P. 32; accord United States v. Helmy, 951 F.2d 988, 997-98 (9th Cir.1991), cert. denied, 112 S.Ct. 2281 (1992).

Here, the PSR contained a recommendation that Spence receive one point based upon his prior misdemeanor conviction for being "under the influence of a controlled substance" in violation of California Health and Safety Code § 11550(a).1 The PSR indicated that Spence received three years probation and thirty days in the county jail. At sentencing, Spence argued that this prior conviction should not be included in his criminal history score because he did not "recall being sentenced to 30 days to the county jail" (RT 6/2/92 at 5). Following an opportunity for further argument by both sides, the district court ruled that "I'm going to resolve the points against the defendant" (id. at 12).

Based on this record, we conclude that district court made a sufficient factual finding in compliance with Rule 32(c)(3)(D). See Helmy, 951 F.2d at 998; see also, United States v. Rigby, 896 F.2d 392, 394 (9th Cir.1990) (district court made sufficient factual findings where it clearly explained the basis of its ruling and gave the defendant an opportunity to rebut the disputed information and/or request a more definitive ruling).

Accordingly, the district court did not violate Rule 32 in imposing the sentence.

AFFIRMED.