Jones v. U.S.

• Decision Date: 06 March 1986
• Docket Number: 85-3706,Nos. 84-3695,s. 84-3695
• Citation: 783 F.2d 1477
• Parties: Fred Lenn JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1477

783 F.2d 1477

Fred Lenn JONES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 84-3695, 85-3706.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 2, 1985.

Decided March 6, 1986.

Janet Sherman, Santa Monica, Cal., for petitioner-appellant.

Jerry Diskin, Asst. U.S. Atty., Seattle, Wash., for respondent-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WRIGHT and REINHARDT, Circuit Judges, and INGRAM, ^* District Judge.

EUGENE A. WRIGHT, Circuit Judge:

In this case we are asked to decide whether alleged inaccuracies in a presentence report or the sentencing judge's subjective expectations about the Parole Commission's application of parole guidelines are sufficient grounds to vacate or amend a sentence under 28 U.S.C. Sec. 2255. The district court denied Jones' Sec. 2255 motion, and we affirm.

FACTS AND PROCEEDINGS BELOW

Jones was convicted in 1978 of conspiracy to distribute heroin, distribution of heroin, and use of a telephone to facilitate a felony. He was sentenced to 15 years in prison, fined $60,000, and given a special parole term of five years. ¹ The conviction was affirmed. United States v. Jones, 612 F.2d 453 (9th Cir.1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980).

Following two unsuccessful Rule 35 motions, Jones moved under 28 U.S.C. Sec. 2255 to correct his sentence, alleging material errors in the presentence report and ineffective assistance of counsel. ² The motion was referred to a magistrate who ruled that, because Jones had not raised the erroneous The district court adopted the magistrate's recommendation and denied Jones' motion to correct his sentence. This court affirmed by unpublished memorandum. Jones v. United States, 730 F.2d 766 (9th Cir.1984). ³

report issue either at sentencing or on appeal, it was waived and could not be raised in a Sec. 2255 motion. He found also that the ineffective assistance of counsel claim failed because no prejudice had been shown.

In January 1983, Jones moved to correct the presentence report, requesting deletion of nine inaccurate statements. ⁴ In December 1983, the court denied his motion. It found that the report contained no statements "which the Court knows of its own knowledge to be false and which should, therefore, be corrected by the Court." Jones' motion for reconsideration was denied.

In March 1984, Jones moved for an evidentiary hearing, contending that sufficient factual contentions had been raised regarding the falsity of statements in the report. The motion was granted and a hearing held in November 1984. ⁵ In March 1985, the court revised one statement in the report, ⁶ but denied Jones' motion to set aside the sentence. Jones timely appealed.

ISSUES PRESENTED

(1) Did the district court err in denying Jones' Sec. 2255 motion to vacate or amend his sentence?

(2) Was Jones denied effective assistance of counsel?

(3) Did the Parole Commission improperly rely on false information in the presentence report?

(4) Does the sentencing judge's reliance on inaccurate estimates as to the Parole Commission's application of parole guidelines entitle petitioner to relief under Sec. 2255?

ANALYSIS

A. Standard of Review

We review de novo a denial of a writ of habeas corpus. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). We also review de novo a district court determination that counsel rendered effective assistance. Butcher v. Marquez, 758 F.2d 373, 376 (9th Cir.1985). Sentencing within statutory guidelines is left to the discretion of the sentencing court, and its decision is reviewable only for an abuse of discretion. United States v. Givens, 767 F.2d 574, 585 (9th

Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 321, 88 L.Ed.2d 304 (1985).

B. Inaccurate Sentencing Information

Jones argues that his sentence was based on a presentence report that was inaccurate and unreliable as to his involvement in drugs. He contends that statements by DEA agents are "totally uncorroborated and completely speculative," and are based on "highly dubious" information from "unnamed and non-credible sources." He argues that the unreliable statements should have been deleted from the report, and seeks resentencing based on accurate information.

The government argues that Jones has failed to show that the sentencing judge relied on the challenged information. It contends also he waived his right to attack the accuracy of the report by failing to raise the issue at sentencing or on appeal. ⁷

Jones is correct that a sentence predicated on material false information denies due process. See Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). But Townsend is an exception to the general rule that due process does not require sentencing information to meet the same rigorous evidentiary standards required at trial. See Williams v. New York, 337 U.S. 241, 250-51, 69 S.Ct. 1079, 1084-85, 93 L.Ed. 337 (1949); United States v. Morgan, 595 F.2d 1134, 1136 (9th Cir.1979) (judges have discretion to consider a wide variety of information from various sources to tailor punishment to the criminal).

Where a Sec. 2255 petition alleges reliance on materially false sentencing information, the sentence will be vacated on appeal only if the challenged information is (1) false or unreliable and (2) demonstrably made the basis for the sentence. Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir.1978) (en banc).

1. Material Falsity

Jones relies on United States v. Weston, 448 F.2d 626 (9th Cir.1971) (sentence vacated where the presentence report was not supported by the underlying confidential report), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972). ⁸ Weston extended the "false information" rationale of Townsend, holding that a sentence cannot be predicated on information where "the factual basis for believing the [challenged information] was almost nil." Id. at 633.

Weston is distinguishable and does not control here. In Weston, the sentencing judge clearly used the challenged information to enhance the defendant's sentence. He had decided initially on a five-year sentence, but added 15 years after reviewing the presentence report. Id. at 628-30. Here, Judge Voorhees did not use the report (and specifically the several challenged portions) to enhance Jones' sentence beyond the period warranted by the conviction itself. He found expressly that "[t]he sentence imposed by the Court was well warranted by the trial testimony."

Second, the defendant in Weston refused to cooperate with the probation office in preparing the presentence report, so the facts in the report were one-sided in favor of the government. Id. at 628. Nor was an evidentiary hearing held in Weston to allow the defendant to challenge the report. Here, the report includes information favorable to Jones, and he was able to present evidence regarding the accuracy of the report at a later evidentiary hearing. Where such countervailing information favorable to the defendant is available to the sentencing judge, consideration of the alleged misinformation does not rise to "an error of constitutional magnitude." United Third, the Weston court held it improper to require the defendant to refute statements where the burden of disproving was "intolerably high," United States v. Miller, 588 F.2d 1256, 1266 (9th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979), and where the report rested on only the "barest factual foundation." Id. Here, the challenged information was largely within Jones' power to refute and was not derived solely from unnamed confidential sources. In fact, the challenged information regarding the value of his property was derived from Jones himself. See Morgan, 595 F.2d at 1137 (Weston satisfied where presentence report allegations were based on police reports and statements made by defendant himself).

States v. Stevenson, 573 F.2d 1105, 1107 (9th Cir.1978).

Jones contends the report "should be completely accurate in every material respect." No authority is cited for this proposition, and it conflicts with our standard as to accuracy of presentence reports. In Weston, we noted: "A rational penal system must have some concern for the probable accuracy of the informational inputs in the sentencing process." 448 F.2d at 634 (emphasis added). Information in the presentence report may be relied on in sentencing if it "is amplified by information such as to be persuasive of the validity of the charge there made." Id. Here, the judge found that testimony presented at trial and at the evidentiary hearing was sufficient to support the challenged statements as to Jones' involvement in narcotics. We shall not interfere with the trial judge's broad discretion to decide not only the relevance but the reliability of sentencing information. Morgan, 595 F.2d at 1138.

Jones has failed to prove that the information in the presentence report was materially false or unreliable so as to constitute a due process violation.

2. Reliance

Even if Jones could show that the presentence report included materially false information, he does not prevail on the second prong of the Farrow test, that the information was made the basis for the sentence. A Sec. 2255 motion "must be denied unless it affirmatively appears in the record that the court based its sentence on improper information." Farrow, 580 F.2d at 1359 (emphasis in original). See also United States v. Williams, 668 F.2d 1064, 1072-73 n. 21 (9th Cir.1981) (abuse of discretion where district court expressly relied on inaccurate statements in presentence report).

We shall affirm a sentence where the trial judge disavows reliance on the challenged sentencing information. United States v. Gonzales, 765 F.2d 1393, 1395 (9th Cir.1985) (judge expressly stated that challenged information as...