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U.S. v. Almada

United States Court of Appeals, Ninth Circuit
Aug 11, 2003
74 F. App'x 731 (9th Cir. 2003)

Opinion


74 Fed.Appx. 731 (9th Cir. 2003) UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Louis ALMADA, Defendant-Appellant. No. 02-50635. D.C. No. CR-01-1169-TJH. United States Court of Appeals, Ninth Circuit. August 11, 2003

Submitted August 4, 2003.

The panel unanimously finds this case suitable for decision without oral argument.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Defendant appealed the sentence imposed by the United States District Court for the Central District of California, Terry J. Hatter, Jr., J., following his guilty plea to two counts of mail fraud, two counts of misappropriation or embezzlement of money of an insurer, and one count of making a false statement to a government agency. The Court of Appeals held that district court erred in failing to make specific findings of fact as to controverted matters.

Sentence vacated and remanded. Appeal from the United States District Court for the Central District of California, Terry J. Hatter, Jr., District Judge, Presiding.

Before KOZINSKI and T.G. NELSON, Circuit Judges, and RESTANI, Judge.

The Honorable Jane A. Restani, United States Court of International Trade, sitting by designation.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Gilbert Louis Almada appeals the sentence imposed following his guilty plea to two counts of mail fraud (18 U.S.C. § 1341), two counts of misappropriation or embezzlement of money of an insurer (18 U.S.C. § 1033(b)), and one count of making a false statement to a government agency (18 U.S.C. § 1001).

First, Almada challenges his sentence because the district court did not make specific findings of fact as to controverted matters. Almada does not allege he was deprived of the opportunity to present evidence relating to controverted facts, rather he alleges the district court did not make the required factual findings. He is correct. The district court indicated it was following the recommendation of the pre-sentence report but the court did not say it agreed with the factual findings contained therein. Thus, as to both the calculation of the amount of restitution and the controverted facts which may relate to discretionary sentencing decisions, the district court must make findings, or decide that the controverted matter will not affect the sentencing or that the matter will not be considered. See United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990).

Second, Almada claims that the district court misapprehended its authority to depart downward. The district court made no statement that could be interpreted as evidence of such a belief and the

Page 733.

government did not urge the court to such a conclusion. Thus, we are without jurisdiction to review the district court's decision not to depart. See United States v. Garcia-Garcia, 927 F.2d 489, 490-91 (9th Cir.1991) (per curiam).

Finally, the district court did not breach Almada's plea agreement, as it was not a party to the agreement. See United States v. Anglin, 215 F.3d 1064, 1068 (9th Cir.2000) (the court is free to adjust a sentence in any lawful way regardless of the terms of the plea agreement.).

SENTENCE VACATED and case REMANDED for factual findings on the matters which were controverted at the time of the original sentencing. After making the necessary findings, the court shall re-sentence the Defendant.


Summaries of

U.S. v. Almada

United States Court of Appeals, Ninth Circuit
Aug 11, 2003
74 F. App'x 731 (9th Cir. 2003)
Case details for

U.S. v. Almada

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Gilbert Louis ALMADA…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 11, 2003

Citations

74 F. App'x 731 (9th Cir. 2003)