U.S. v. Ibarra

• Decision Date: 16 July 1984
• Docket Number: No. 83-5292,83-5292
• Citation: 737 F.2d 825
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel IBARRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 825

737 F.2d 825

UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel IBARRA, Defendant-Appellant.

No. 83-5292.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 1984.

Decided July 16, 1984.

Judith F. Hayes, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

John J. Cleary, Cleary & Sevilla, San Diego, Cal., for defendant-appellant.

On Appeal from the United States District Court for the Southern District of California.

Before WALLACE, PREGERSON, and ALARCON, Circuit Judges.

PREGERSON, Circuit Judge:

Juan Ibarra purchased a .22 caliber semiautomatic rifle by lying about his prior felony convictions. The Bureau of Alcohol, Tobacco, and Firearms (BATF) arrested him. Ibarra pleaded guilty to making a false statement in connection with the acquisition of a firearm, 18 U.S.C. Secs. 922(a)(6), 924(a) (1982), and the Probation Office prepared a presentence report. Ibarra challenges the report's accuracy and contends that the district court improperly relied on it in sentencing him. Because we think that the district court did not rely on the challenged statements, we affirm.

FACTS

Ibarra complains that the Probation Office's presentence report improperly contains at least two damaging statements. First, the report includes the conclusions of a BATF agent that

the defendant shows a persistent determination to obtain a .22 caliber rifle, and that the .22 caliber rifle, purchased in the instant offense, has the appearance of a semiautomatic weapon which would intimidate. Therefore ... the defendant purchased the weapon to intimidate other people.

Presentence Report on Juan Manuel Ibarra, United States District Court, Southern District of California, at 4 (Oct. 11, 1983).

Second, the report includes a local deputy sheriff's comments about

the incidents of animal abuse in which the defendant shot a neighbor's dog about October 12, 1982, plus reported complaints from undocumented aliens in the area of Borrego Springs who allegedly claim the defendant intimidates them for small amounts of money. [The deputy] also recited an incident of reported burglary of a .22 caliber rifle from the home of a neighbor of the defendant, in which the defendant is the primary suspect. Therefore, he concluded that IBARRA is a danger to the community and an individual who keeps the Deputy Sheriff busy.

Id. at 10.

Ibarra argued that these statements were either incorrect or undocumented. The district court essentially agreed and rejected the BATF agent's conclusions and the deputy sheriff's allegations. Ibarra's counsel proposed a sentence of 8 months, the Probation Office 2 years, and the Government the maximum of 5 years. The district court imposed a 4-year term. Ibarra appealed.

STANDARD OF REVIEW

We review a sentence for abuse of discretion, 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), if defendant can show that the district court relied on information that should not have been considered during the sentencing phase, e.g., United States v. Sanchez-Murillo, 608 F.2d 1314, 1319 (9th Cir.1979).

ANALYSIS

To succeed on appeal, Ibarra must establish that 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). Challenged information is "false or unreliable" if it lacks "some minimal indicium of reliability beyond mere allegation." United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir.1982), construing United States v. Weston, 448 F.2d 626, 633-34 (9th Cir.), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1971).

New Fed.R.Crim.P. 32(c)(3)(D) helps courts implement the Farrow test. ¹ The rule requires the district court, in entertaining a challenge to a presentence report, either to decide the challenge on the merits, or to state that no finding is necessary because the court will not rely on the controverted information. See Fed.R.Crim.P. 32(c)(3)(D) advisory committee note on 1983 amend., para. 7.

In the present case, we hold that the district court substantially complied with Rule 32(c)(3)(D) and that Ibarra has not shown that the court "demonstrably" relied on the challenged information when it imposed sentence.

Regarding the BATF agent's conclusion that Ibarra bought the rifle to intimidate people, the court said, "What difference does it make what she [the agent] concluded? Anyone can conclude anything they want." Transcript at 22, quoted in Appellee's Brief at 7-8. Although the court could--and probably should--have explicitly stated that it would not rely on the BATF agent's conclusion, its rhetorical question, expressing skepticism, had the same effect.

Regarding the deputy sheriff's comments, the court seemed to discount them as well. In discussing the information about Ibarra's allegedly extorting money from undocumented aliens, the court said, "One says he [Ibarra] did. One says he didn't. That's all it is." Transcript at 57, quoted in Appellee's Brief at 20 n. 3.

Again, we think the court could and should have been more explicit. But this statement, in light of the other negative factors in the presentence report that went uncontroverted, indicates to us that the court did not rely on the deputy's statements.

CONCLUSION

We hold that the district court did not abuse its discretion when it imposed the 4-year sentence. Therefore, we affirm, but with this caveat: the district courts should follow the command of Fed.R.Crim.P. 32(c)(3)(D) more precisely. When a district court confronts a challenge to the...