Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Aug. 7, 1989.
Appeal from the United States District Court for the Western District of Washington; Jack E. Tanner, District Judge, Presiding.
W.D.Wash.
AFFIRMED.
Before EUGENE A. WRIGHT, WILLIAM A. NORRIS and BEEZER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Arthur Durand appeals his 35-year prison sentence for kidnapping on the grounds that the district court (1) erred in refusing to consider mitigating evidence; (2) violated his due process rights by considering false or unreliable information; and (3) erred in not attaching to the presentence report a written record of its findings and determinations concerning disputed parts of the report. We affirm the sentence, but order the district court to append to the presentence report the required findings and determinations.
This is Durand's second appeal. After Durand pled guilty to one count of kidnapping in violation of 18 U.S.C. § 1201(a)(2), the district court sentenced him to thirty-five years in prison. Durand appealed. In a decision filed on November 18, 1986, we reversed and remanded for resentencing because the district court had failed to make findings concerning Durand's assertions of error in the presentence report.
At the resentencing hearing, Durand disputed information in the presentence report concerning his involvement in drug-trafficking, his alleged rape of Baugher, one of the kidnap victims, and his beating of Skuza, the other kidnap victim. The district court judge also permitted Durand to speak to the court about any mitigating circumstances. Durand referred to his wife's letter detailing Durand's progress over the years in avoiding criminal activity, and to his good behavior at the detention center after his arrest.
The court made oral findings addressing Durand's proposed corrections to the presentence report. The court stated that it would not rely on any information regarding whether Durand was involved in drugs or his alleged rape of Baugher. The court, however, was not convinced that Durand did not inflict the facial wounds on Skuza shown in photographs submitted by the government. In addition, the court found Sue Durand's letters unreliable and Durand's behavior after his arrest irrelevant. The district court resentenced Durand to thirty-five years imprisonment, and Durand filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291.
I
Mitigating Evidence
In this pre-Guidelines case, sentencing within statutory limits is left to the sound discretion of the trial court; we generally review its decision only for an abuse of discretion. See Jones v. United States, 783 F.2d 1477, 1479 (9th Cir.1986). However, as we noted in United States v. Lopez-Gonzales, 688 F.2d 1275, 1276 (9th Cir.1982), the court's discretion must be actually exercised, and the exercise of discretion requires consideration of any mitigating and aggravating circumstances, id. at 1277.
Durand contends that his sentence is illegal because the district court failed to exercise its discretion by refusing to consider mitigating circumstances. This argument is without merit.
We have vacated sentences based on an abdication of discretion where the trial judge either automatically imposed the maximum penalty for certain crimes, or failed to individualize sentences. See, e.g., Lopez-Gonzales, 688 F.2d at 1277 (trial court automatically imposed maximum penalty on illegal aliens apprehended after flight and pursuit); United States v. Barker, 771 F.2d 1362, 1366 (9th Cir.1985) (court sentenced defendants based on category of crime rather than on individual culpability). In contrast, there is nothing in the record here to suggest that the sentence was the result of any preconceived policy or that the court failed to take into account Durand's individual circumstances. To the contrary, the trial judge considered the letters written by Durand's wife, but found that they lacked credibility. Similarly, the judge considered Durand's progress in educational and therapy programs during his post-arrest detention and found this irrelevant to mitigation. Both these determinations were properly within the district court's discretion. See Jones, 783 F.2d at 1481 (in considering sentencing information, the district court has discretion to evaluate both its relevancy and reliability). Moreover, we note that the court did not impose the statutory maximum of life imprisonment. See 18 U.S.C. § 1201. Thus, we find no error with regard to the district court's consideration of mitigating circumstances.
II
False or Unreliable Information
A defendant who challenges information used in sentencing must show that the information is (1) false or unreliable and (2) demonstrably made the basis for the sentence. United States v. Edwards, 800 F.2d 878, 880 (9th Cir.1986). When a defendant challenges information in the presentence report, the district court is required to make a finding concerning the controverted information or to make a determination that no such finding is necessary because the controverted matter will not be taken into consideration in sentencing. Fed.R.Crim.P. 32(c)(3)(D); Edwards, 800 F.2d at 881.
Durand argues that the district court relied on erroneous information concerning Durand's involvement in drug trafficking and on Baugher's false accusation of rape. At the resentencing hearing the district court explicitly stated that it would not rely on either of these contested items. Nonetheless, Durand claims that the court's actual reliance on Durand's alleged drug trafficking is demonstrated by (1) the court's subsequent statement at Durand's resentencing that it did not believe Durand's explanation of why he came to Tacoma, the site of the kidnapping; and (2) by the court's statement at codefendant Langmeier's sentencing that Durand was in the drug business. Similarly, Durand points to the court's statement at Langmeier's sentencing that the court found Baugher's rape accusation "convincing."
Durand's argument is unpersuasive. Remand may be appropriate when it is questionable whether the court actually relied on the contested items. See United States v. Baron, 860 F.2d 911, 919-20 (9th Cir.1988), cert. denied, 109 S.Ct. 1944 (1989). In this case, however, the portions of the record cited by Durand are insufficient to undermine our confidence in the court's explicit disavowal of reliance on the disputed information.
Durand also contends that the district court relied on an erroneous finding that Durand inflicted all of Skuza's facial wounds. In a letter to the court prior to the initial sentencing, Durand admitted that he slapped Skuza twice on the face. At the resentencing hearing, Durand acknowledged his previous admission, but denied responsibility for Skuza's extensive facial wounds. The district court doubted Durand's credibility in part because Skuza had stated that Durand's codefendant had hit him on the back of the legs, but that Durand had hit his face. In this context, we find that the district court did not abuse its discretion in concluding that Durand was responsible for Skuza's facial wounds, and that Durand has failed to show that the court relied on materially false information.
III
Failure to Attach Findings and Determinations
Federal Rule of Criminal Procedure 32(c)(3)(D) requires the trial court to append to the presentence report its findings and determinations concerning contested matters. Durand asserts that we must remand for resentencing because the district court failed to comply with this requirement.
Our recent decision in United States v. Fernandez-Angulo, No. 87-3068, slip op. 2731 (9th Cir. March 13, 1990) (en banc), is dispositive of this issue. In that case, we held that failure to append the required findings and determinations "is a ministerial error which does not require resentencing." Fernandez-Angulo, slip op. at 2736-37. "The technical error must, however, be corrected by ordering the district court to append to the presentence report the required findings and determinations." Id. at 2737. Accordingly, although we affirm Durand's sentence, we remand in order for the district court to append its findings and determinations.
AFFIRMED.