United States v. Stanley Eugene Farmer , 26 F.3d 133 ( 1994 )

26 F.3d 133

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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

No. 93-50685.

United States Court of Appeals, Ninth Circuit.

Submitted May 24, 1994.*
Decided June 7, 1994.

Before: HUG, D.W. NELSON, and FERNANDEZ, Circuit Judges.

1

MEMORANDUM**

2

On June 11, 1993, Farmer pleaded guilty to possession of counterfeiting materials in violation of 18 U.S.C. Sec. 474. At sentencing, Farmer contested several factual findings contained in the presentence report. The district court repeatedly stated that it would not rely on the disputed facts in imposing sentence. The court then sentenced Farmer to 21 months' imprisonment. Farmer appeals.

3

Federal Rule of Criminal Procedure 32(c)(3)(D) provides that, if a defendant controverts factual matters in the presentence report, the district court shall either "make (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(c)(3)(D). The court must then append a written record of its findings and determinations to any copy of the presentence report made available to the Bureau of Prisons. Id. A district court's failure to make the required findings and determinations necessitates vacation of the related sentence. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc).

4

Here, the district court made the findings and determinations required by Rule 32(c)(3)(D). At the sentencing hearing, the district court expressly and unambiguously stated, five times, that it would not rely on the disputed facts in sentencing Farmer. See United States v. Houtchens, 926 F.2d 824, 828 (9th Cir.1991) (district court's statement that alleged inaccuracies in presentence report would not "affect the sentencing in this matter," held to comply with Rule 32(c)(3)(D)).1

5

AFFIRMED.

*

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed.R.App.P. 34(a)

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The court appended its ruling to the judgment and commitment order. The record is unclear as to whether the order was in turn appended to the presentence report furnished to the Bureau of Prisons, as required by Rule 32(c)(3)(D). However, Farmer does not challenge this aspect of the district court's procedure