985 F.2d 576 (9th Cir. 1993), 92-50385, U.S. v. Spence

• Docket Number: 92-50385.
• Date: 27 January 1993
• Citation: 985 F.2d 576
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Levert Leneal SPENCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 576

985 F.2d 576 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Levert Leneal SPENCE, Defendant-Appellant.

No. 92-50385.

United States Court of Appeals, Ninth Circuit

January 27, 1993

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 (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Decided Feb. 2, 1993.

Appeal from the United States District Court for the Central District of California; No. CR-92-0003-MRP-1, Mariana R. Pfaelzer, District Judge, Presiding.

C.D.Cal.

AFFIRMED.

Before REINHARDT, CYNTHIA HOLCOMB HALL and LEAVY, Circuit Judges.

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...