U.S. v. Gonzales

• Decision Date: 16 July 1985
• Docket Number: Nos. 84-3071,84-3109,s. 84-3071
• Citation: 765 F.2d 1393
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe S. GONZALES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1393

765 F.2d 1393

UNITED STATES of America, Plaintiff-Appellee, v. Joe S. GONZALES, Defendant-Appellant.

Nos. 84-3071, 84-3109.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 6, 1985.

Decided July 16, 1985.

Leslie Baker, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Steven T. Wax, Portland, Or., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before WALLACE and SNEED, Circuit Judges, and LEGGE, ^* District judge.

WALLACE, Circuit Judge:

Gonzales appeals from the district court's denial of his motion to correct or reduce sentence under rule 35, Fed.R.Crim.P., and from the denial of his motion to reconsider the rule 35 motion. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

I

In 1984, Gonzales pleaded guilty to an information charging one count of forgery of a United States Treasury check, in violation of 18 U.S.C. Sec. 495. Prior to imposing sentence, the district court ordered a presentence report pursuant to rule 32(c), Fed.R.Crim.P. The report was disclosed to Gonzales, except for the "Sentencing Recommendation" which was withheld pursuant to rule 32(c)(3)(A).

The presentence report indicated that Gonzales had been convicted of assault and battery, public drunkenness, and three sex offenses. Two of the sex offenses were committed in 1954 and involved sexual relations with teenage girls. In 1976, Gonzales was convicted of the knife-point rape of the daughter of a woman he was dating, for which he was sentenced to ten years' imprisonment. The presentence report indicated that all of the above offenses were committed while Gonzales was inebriated.

The presentence report also states that Gonzales was paroled in 1980, but that his parole was revoked in 1981 after he was arrested for sexually molesting a ten year old girl. Gonzales was again paroled in 1982, but his parole was later revoked in 1983 because he was arrested for sexual abuse and sodomy involving a fifteen year old mute, mentally retarded boy. Although the presentence report indicates that both these charges were dismissed, they resulted in the revocation of Gonzales' parole and his reconfinement. The report discloses that Gonzales was arrested several times during the 1950s and 1960s for vagrancy, drunkenness, gambling, simple assault and on two occasions after assaulting his wife.

Finally, the report contains an evaluation by the probation officer stating the probation officer's belief that Gonzales posed a threat to the community and needed both psychological therapy and treatment for his past sex offenses and for alcohol abuse. The probation officer viewed the current offense as part of Gonzales' continuing criminal behavior and believed that his lack of employment and residence at the time of the present offense were the result of his alcohol abuse.

Before the district court imposed a sentence, Gonzales' attorney sent a letter to the sentencing judge. Because the district employed a sentencing council composed of all district judges, he also sent copies to all of the sentencing council judges. The letter challenged the validity of the two sex offense charges brought against Gonzales while he was on parole, and argued there was no connection between the prior sex offenses and the forgery.

At the sentencing on March 5, 1984, Gonzales' attorney again raised his objections to the presentence report. The district court expressly stated that the prior offenses which had not resulted in convictions would not be taken into account in sentencing. The court sentenced Gonzales to nine years and recommended that he serve his sentence in the North Dakota State Penitentiary because of its excellent sex offender program. The court also ordered Gonzales to serve three years before becoming eligible for parole pursuant to 18 U.S.C. Sec. 4205(b), because the sex offender program required three years of treatment.

Gonzales filed a motion under rule 35, Fed.R.Crim.P., seeking to reduce or correct his sentence. Gonzales argued that the sentence was based on erroneous information- --namely, that Gonzales was a habitual sex offender and that there was a direct relationship between his sex offenses and the forgery. At the hearing on the rule 35 motion, the district court denied Gonzales' request for an evidentiary hearing on the sentencing process. The court stressed that the probation officer disclosed no facts during ex parte discussions that were not in the presentence report and that the court merely was utilizing the probation officer's expertise in the area of programs and facilities.

On July 24, 1984, Gonzales moved for a reconsideration of his rule 35 motion. In this motion, he argued that Oregon's treatment program would be more appropriate and was available to him. The court ordered that Gonzales be evaluated by that program, but Gonzales was rejected as unsuitable for the program. On October 23, 1984, the court ordered Gonzales returned to United States custody, and reiterated his original recommendation of the North Dakota program.

II

The maximum sentence under 18 U.S.C. Sec. 495 is ten years; thus, the nine year sentence is within statutory limits. When a sentence is within legal limits, appellate review is severely limited. See, e.g., United States v. Chiago, 699 F.2d 1012, 1014 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 171, 78 L.Ed.2d 154 (1983); United States v. Garrett, 680 F.2d 650, 652 (9th Cir.1982). Such a sentence may be vacated only if it is based on materially erroneous information. See United States v. Tucker, 404 U.S. 443, 447-49, 92 S.Ct. 589, 591-93, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948); accord Dorszynski v. United States, 418 U.S. 424, 431 n. 7, 94 S.Ct. 3042, 3047 n. 7, 41 L.Ed.2d 855 (1974).

Gonzales argues that the district court relied on the presentence report, which described his two arrests for sex offenses while on parole. Gonzales maintains that although the charges associated with the arrests were dismissed, the district court considered the nature of the offenses in recommending a sex offender treatment program. Gonzales objected to the inclusion of this information in the report, and challenged its validity. The district judge, however, explicitly stated that he did not consider these offenses in his sentencing decision.

Gonzales argues that the district court's sentencing process violated his due process rights. We review the district court's decisions for an abuse of discretion. See, e.g., United States v. Holt, 704 F.2d 1140, 1140 (9th Cir.1983) (per curiam) (decision not to hold an evidentiary hearing on a rule 35 motion); United States v. Kouwenhoven, 602 F.2d 234, 238 (9th Cir.1979) (denial of rule 35 motion).

Gonzales first argues that the district court improperly relied on his two parole offenses. We disagree. In order to vacate a sentence based on materially erroneous information, a defendant has the burden to show that the challenged information "is (1) false or unreliable, and (2) demonstrably made the basis for the sentence." United States v. Ibarra, 737 F.2d 825, 827 (9th Cir.1984), quoting Farrow v. United States, 580 F.2d 1339, 1359 (9th Cir.1978) (en banc). See also United States v. Tooker, 747 F.2d 975, 978-80 (5th Cir.1984) (defendant has the burden of showing materially inaccurate information and the court's reliance on it), cert. denied, --- U.S. ----, 105 S.Ct. 2032, 85 L.Ed.2d 314 (1985); United States ex rel. Welch v. Lane, 738 F.2d 863, 865 (7th Cir.1984) (same).

We have stated that rule 32, Fed.R.Crim.P., "helps courts implement the Farrow test." Ibarra, 737 F.2d at 827. Rule 32(c)(3)(D) provides that if the information in the presentence report is inaccurate, the defendant may bring such inaccuracies to the court's attention. Once this is done, the court must either (1) make a finding on each controverted fact, or (2) determine that such findings are unnecessary because the controverted facts will not be taken into account. Fed.R.Crim.P. 32(c)(3)(D). Here, the trial judge stated on the record, following Gonzales' objection, that he would disregard the two parole offenses in his consideration of the sentencing.

We conclude that the district court complied with rule 32, and did not commit any improprieties. In Ibarra, we construed the district court's comments to the effect that the challenged evidence was irrelevant as substantial compliance with rule 32(c)(3)(D). See Ibarra, 737 F.2d at 827. We also observed, however, that district courts should state their intent to disregard controverted matters explicitly in the future. Id. Accord United States v. Travis, 735 F.2d 1129, 1132-33 (9th Cir.1984). Here, the district judge stated that he "[d]iscount[ed] completely the two events that occurred while [Gonzales was] on parole that were dismissed." We find this statement sufficiently explicit. When a district court complies with this part of the rule, it prevents defendants from establishing the second prong of the Ibarra-Farrow test because the district court demonstrably refrained from relying on the challenged evidence. See United States v. Brown, 715 F.2d 387, 389 (8th Cir.1983) ("due process affords the defendant no right to rebut evidence not relied upon in the sentencing process").

Gonzales asserts that we cannot take this statement at its face value because his sentence is nonsensical unless the district court took the offenses into account. We disagree. We must take such statements at face value because if we do not do so, we will have abandoned our reliance on the good faith of our district court judges. See United States v. Lee, 648 F.2d 667, 669 (9th Cir.1981) (mere awareness of prejudicial information by trial judge does not taint sentence if not relied on). As we stated in Farrow, "[w]e must trust that our judges will rise above [impermissible] influences--just as we are confident they...